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ELCDismissedNot stated in the judgment (suit concerning Plot No. 722 Takaungu, Kilifi County)· [2024] KEELC 926 (KLR)

Salim & 3 others v Pastad (Environment & Land Case 165 of 2018) [2024] KEELC 926 (KLR)

Environment and Land Court
15 February 2024
EME. K. Makori
4,343 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to block a land dispute claim or strike it out, freezing the Takaungu plot's status until trial decides who owns it.

What this practically means

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Executive summary

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The Environment and Land Court at Malindi (E. K. Makori J.) delivered a ruling on 15th February 2024 in an interlocutory application dated 23rd February 2023 filed by the defendant in a suit over Plot No. 722 Takaungu, Kilifi County. The defendant, who purchased the plot from one Harrison Mwarumba Mbui following the Takaungu Adjudication Section exercise, sought a temporary injunction restraining the four plaintiffs from interfering with the plot and, further, the striking out of the plaintiffs' suit on grounds of want of locus standi (the plaintiffs allegedly not being gazetted members of the Mazrui Land Trust Board) and an alleged conflict of interest by the firm of Kanyi J. & Co. Advocates, said to have previously acted for the defendant. The 1st to 3rd plaintiffs, claiming as trustees of the Mazrui Community's Wakf, and the 4th plaintiff, a lessee, opposed the application, relying on the Mombasa High Court declarations in HCCC No. 185 of 1991 that the Mazrui are the lawful owners of the land and that the adjudication was nullified, and contending the defendant had no prima facie case under Giella v Cassman Brown. The court held that striking out was too drastic a remedy because the plaintiffs' standing as rightful trustees is a triable issue, and that the alleged conflict of interest was moot following a change of advocates. On the injunction, applying the Giella principles sequentially, the court found competing title narratives that only trial could resolve, so no prima facie case was established. The application was dismissed with costs, but the court directed that Plot No. 722 Takaungu remain registered as per the register and not be transferred or charged to any third party pending determination of the suit.

Key legal issues

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01

Whether the suit should be struck out for want of locus standi and conflict of interest

Holding

No. Whether the plaintiffs are the rightful trustees of the Mazrui Community is a triable issue requiring a hearing; the alleged conflict of interest by the plaintiffs' advocates is moot due to a change of advocates.

Reasoning

The court reiterated that striking out is a draconian measure exercisable only in plain cases, and a suit raising even one bona fide triable issue must proceed to trial. The defendant's challenge to the plaintiffs' standing rested on the effect of the repeal of the Mazrui Lands Trust Act and subsequent court declarations, matters requiring full trial. The conflict-of-interest complaint was also moot because there had long been a change of advocates.

p. 7
02

Whether a temporary injunction should issue in favour of the defendant

Holding

No. The defendant failed to establish a prima facie case with a probability of success; the competing claims of title (Mazrui Community ownership versus adjudication-based acquisition from Harrison Mwarumba Mbui) must be determined at trial.

Reasoning

Applying Giella v Cassman Brown and Mrao v First American Bank sequentially, the court found two warring factions with competing title narratives: the Mazrui Community relying on the 1913 Wakf, Certificate of Ownership No. 409 and the Mombasa HCCC No. 185 of 1991 declarations, and the defendant relying on an adjudication allocation later allegedly nullified. Which process passed the 'real' title is a matter for trial, so an injunction was not appropriate.

p. 7

Legal principles established

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  • Striking out pleadings is a discretionary jurisdiction to be exercised judicially and sparingly; a defence raising even one bona fide triable issue must be allowed to proceed to trial
  • The conditions for an interlocutory injunction are addressed sequentially: the second condition is only considered if the first (prima facie case) is satisfied, and the third where the court is in doubt

Court orders

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  1. 1.The application dated 23rd February 2023 is dismissed with costs
  2. 2.Plot No. 722 Takaungu in Kilifi County to remain registered in the names of the person(s) as appearing in the register and not to be transferred or charged to any third party until the current suit is heard and determined
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land in Kilifi County (interlocutory application in a pending suit; specific enabling provision not cited)

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, "Salim & 3 others v Pastad (Environment & Land Case 165 of 2018) [2024] KEELC 926 (KLR)", Case Analysis (2024). Not stated in the judgment (suit concerning Plot No. 722 Takaungu, Kilifi County). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/926/eng@2024-02-15

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