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ELCDismissedMiscellaneous Application E006 of 2022· [2023] KEELC 20886 (KLR)

Baslum & 2 others v Abdikadir & 3 others

Environment and Land Court
23 October 2023
PNP.M. Njoroge
1,653 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to stop landowners already living on disputed property, saying money can fix any harm later.

What this practically means

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Executive summary

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The four applicants, describing themselves as beneficiaries of the estate of their grandfather Sheikh Adan Golicha, moved the Environment and Land Court at Isiolo by a notice of motion dated 2nd August 2022 seeking temporary injunctions restraining the three respondents from alienating, entering, constructing on or trespassing upon L.R No. 11969/101 Marsabit, and an order maintaining status quo pending transfer of the matter from Marsabit Law Courts. The respondents opposed, contending that no suit existed upon which interlocutory orders could be pegged, that the property is registered in the name of Madrassatul Fathi Al-Islamia (a society whose officials are the respondents) under an indefeasible title, that the grandfather had divested himself of the land by a 1991 transfer to Sharrif Awo Mohamed, who transferred it to the society in 2003, and that the respondents were already in occupation with paying tenants. The application was canvassed by written submissions, the applicants invoking the Giella v Cassman Brown principles. The court declined to determine the 'no suit' objection for want of evidence, noted the applicants' admission that the respondents were in possession, and held that restraining parties already in occupation would be inappropriate, any injury being compensable in damages. The application was dismissed with costs to the respondents.

Key legal issues

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01

Existence of a suit as a precondition to interlocutory injunction

Holding

The court declined to make a finding on whether a suit existed, as no evidence of non-existence of a suit was proffered

Reasoning

The respondents argued that under Order 40 Rule 1(a) CPR 2010 a temporary injunction can only be made in a suit concerned with property, and that no suit existed. The court held it could not determine the issue because no evidence of the suit's non-existence was presented.

02

Prima facie case and irreparable injury under Giella v Cassman Brown

Holding

The applicants failed to demonstrate entitlement to a temporary injunction; respondents were in occupation and any injury was compensable in damages

Reasoning

Applying the Giella principles, the court found the applicants admitted respondents' possession and occupation. Although the applicants disputed the propriety of the respondents' title, the title exists and its legal standing can only be determined after the main suit is heard. Denial of the orders would cause no non-compensable injury.

p. 4

Legal principles established

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  • An injunction will not issue to restrain a party already in occupation of the suit land where any alleged injury is compensable by damages

Court orders

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  1. 1.This application is dismissed.
  2. 2.Costs are awarded to the respondents.
Jurisdiction invoked
Order 40 Rule 1(a) of the Civil Procedure Rules 2010 (temporary injunction in a suit concerning property)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Baslum & 2 others v Abdikadir & 3 others", Case Analysis (2023). Miscellaneous Application E006 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20886/eng@2023-10-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.