Mbugua & 2 others v Monikas Private Bush Safaris Limited (Enviromental and Land Originating Summons E007 of 2023) [2024] KEELC 1000 (KLR)
The bottom line
#A Mombasa court refused to stop an alleged eviction in Mtwapa but froze the disputed plots' current state until the ownership case is fully heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case with a probability of success
They did not; the Defendant demonstrated ownership through a confirmed grant vesting the suit properties in him
The court applied the Mrao definition of a prima facie case. The Defendant produced a Certificate of Confirmation of Grant from Mombasa Principal Magistrate's Court Succession Cause No. 373 of 2018 vesting the suit properties and the company in him. The 1st Plaintiff admitted on oath he was employed as a driver by the company and was housed as an employee, meaning his presence was permissive and could not ground adverse possession. The court found the Defendant rebutted the adverse possession claim satisfactorily.
Whether the Plaintiffs would suffer irreparable injury not compensable by damages
They would not; no irreparable harm was demonstrated
Applying Pius Kipchirchir Kogo v Frank Kimeli Tenai, the court held the Plaintiffs had not shown an injury that could not be adequately compensated by damages, nor that their occupation was exclusive. The Defendant had been paying rates and rent to the County Government of Kilifi, evidencing ownership. The court noted it need not reach this limb at all given failure on the first condition.
Where the balance of convenience lies
The balance of convenience favoured the Defendant, but the court nonetheless ordered maintenance of the status quo to preserve the suit property pending trial
The court accepted the principle in Amir Suleiman v Amboseli Resort Limited that the court should opt for the lower risk of injustice. Although finding the balance tilted to the Defendant, the judge considered the property at risk of being wasted and chose to preserve it by ordering status quo rather than granting the Plaintiffs' application, directing the main suit be heard on its merits.
Who bears the costs of the application
The Plaintiffs, as the application was dismissed
Under Section 27 of the Civil Procedure Act costs follow the event unless the court orders otherwise for good reason. Having found the application lacked merit, the court exercised its discretion to award costs to the Defendant/Respondent, citing Morgan Air Cargo Limited v Evrest Enterprises Limited on the circumstances-dependent nature of the discretion.
Legal principles established
#- The three Giella conditions are sequential hurdles; if prima facie case is not established, irreparable injury and balance of convenience need no consideration
- On an interlocutory injunction application the court makes no final findings of contested fact but weighs the relative strength of the parties' cases
- In interlocutory injunctive relief the court should opt for the lower rather than the higher risk of injustice
Court orders
#- 1.The Notice of Motion application dated 15th May, 2023 dismissed in its entirety as lacking merit
- 2.Temporary injunctive orders against the parties to maintain the status quo of plots CR 3995/111/MN, CR 33895/111/MN, CR 3996/111/MN, CR 4000/111/MN, CR 33900/111/MN, CR 4001/111/MN and CR 33901/111/MN Mtwapa, Kilifi County pending hearing and determination of the suit
- 3.Suit to be heard on 16th May, 2024 with mention on 8th April, 2024 for pre-trial conference under Order 11 of the Civil Procedure Rules, 2010
- 4.Costs of the Notice of Motion application awarded to the Defendant/Respondent
- Jurisdiction invoked
- Order 40 Rule 1 of the Civil Procedure Rules 2010; Sections 3A and 63 of the Civil Procedure Act (Cap 21); Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbugua & 2 others v Monikas Private Bush Safaris Limited (Enviromental and Land Originating Summons E007 of 2023) [2024] KEELC 1000 (KLR)", Case Analysis (2024). Originating Summons dated 15th May, 2023 (Notice of Motion dated 15th May, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1000/eng@2024-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.