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ELCPartially AllowedNot stated in the judgment (original suit number omitted from the text)· [2024] KEELC 485 (KLR)

Mambo (Administrator of the Estate of Mohamed Mambo) & 3 others v Hawkins & 4 others (Environment & Land Case 247 of 2021) [2024] KEELC 485 (KLR)

Environment and Land Court
6 February 2024
ADA.E. Dena
1,769 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, joint registered proprietors of land parcels Kwale/Diani Beach Block/102 and 103 obtained through their fathers pursuant to a judgment of 28/9/2008, moved the court for a temporary injunction restraining the 3rd Defendant from trespassing on or continuing construction on the suit parcels, together with police assistance and costs. The 3rd Defendant, represented through its Managing Director Peter Burugu, opposed the application, asserting it has been a lessee from the Government of Kenya since 29/5/1980, that it discovered the parcels had been converted to freehold and registered in the Plaintiffs' names following acquisition by adverse possession, that an application to set aside the adverse possession judgment had been allowed, and that status quo orders had been abided. The Plaintiffs, in a further affidavit by Mwinyi Juma Bugu, maintained the 2009 judgment allocated each parcel to a specific plaintiff, that vacating orders of 5/3/2010 were never effected on the green cards, and sought a deposit of Kshs 100,000,000/- as compensation. Applying Order 40 Rule 1(a) and the Giella v Cassman Brown criteria, the court found that competing freehold and leasehold titles could only be resolved after a full hearing, declined to grant the temporary injunction as framed, and instead ordered maintenance of the status quo: no further construction or development on the disputed parcels, ongoing construction to cease, pending hearing and determination of the suit. The compensation deposit was left to the main hearing, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Applicants met the Giella v Cassman Brown criteria for a temporary injunction

Holding

A full prima facie determination on ownership could not be made on the papers because there are two competing titles; the court exercised its discretion to maintain the status quo instead of granting the injunction sought

Reasoning

The Plaintiffs produced title deeds issued on 4/4/2019 while the 3rd Defendant produced a certificate of lease dated 29/5/1980. Determining which title prevails requires a full hearing. Since the 3rd Defendant was continuing development, the court inclined towards maintaining the status quo of the suit properties until the matter is heard and determined, rather than issuing a formal temporary injunction.

p. 3
02

The meaning and purpose of a status quo order

Holding

Status quo means the situation as it exists; such an order preserves the existing factual scenario as at the time the order is made

Reasoning

Relying on Black's Law Dictionary and the decision in Republic v National Environment Tribunal, Ex-parte Palm Homes Limited, the court held that a status quo order is intended to preserve the existing state of affairs, and accordingly ordered that no further construction or development take place on the disputed parcels pending the hearing and determination of the suit.

p. 4
03

Whether the court had issued status quo orders on 8/3/2023 as alleged by the Plaintiffs

Holding

The court could not find the status quo order of 8/3/23 referred to by the Plaintiffs; the proceedings of 15/3/2023 only urged counsel to visit the suit property

Reasoning

On perusal of the pleadings and preceding proceedings, the judge did not find the status quo order the Plaintiffs said was issued on 8/3/23. However, the record showed the Applicants' counsel noted developments on the land in disregard of orders issued by Justice Yano, which necessitated the instant application.

p. 3

Legal principles established

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  • The conditions for granting a temporary injunction are a prima facie case with probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience
  • The grant or refusal of an injunction is a judicial discretion that must be exercised judiciously
  • A status quo order preserves the existing state of affairs as at the time the order is made

Court orders

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  1. 1.An order for status quo that there shall be no further constructions or development at the disputed parcels being Kwale/Diani Beach Block/102 and Kwale/Diani Beach Block/103; any ongoing constructions to forthwith cease
  2. 2.The status quo to remain in force pending the hearing and determination of this suit
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a)

Cases cited (5)

  • Giella v Cassman Brown & Co. Ltd
  • Kibutiri v Kenya Shell
    Nairobi High Court, Civil Case No 3398 of 1980 (1981) KLR
  • E.A Industries v Trufoods
    (1972) EA 420
  • Daniel Kipkemoi Stele v Kapsasian Primary School & 2 others
    [2016] eKLR
  • Republic v National Environment Tribunal, Ex-parte Palm Homes Limited & another
    [2013] eKLR
Jurisdiction invoked
Order 40 Rule 1(a) of the Civil Procedure Rules

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, "Mambo (Administrator of the Estate of Mohamed Mambo) & 3 others v Hawkins & 4 others (Environment & Land Case 247 of 2021) [2024] KEELC 485 (KLR)", Case Analysis (2024). Not stated in the judgment (original suit number omitted from the text). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/485/eng@2024-02-06

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