Lmantia Leadismo (Suing as an administrator of the Estate of Leadismo Nee Wildmonika Ilona) v Mbugua & 2 others (Environment & Land Case E063 of 2023) [2024] KEELC 1050 (KLR)
The bottom line
#A Mombasa court froze all dealings with disputed Mtwapa land owned through inheritance, but refused to order demolition of structures already built on it.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
The Applicant established a prima facie case as the lawful registered proprietor whose right may be infringed
The court applied the Mrao definition of a prima facie case. The Applicant held a Certificate of Confirmation of Grant vesting the suit properties in him, had been in possession since the 1990s, and the Defendants' Replying Affidavit did not rebut these averments. Evidence showed invasion, tree cutting, sub-division and erection of illegal structures without colour of right, contrary to Article 40 and the Land Registration Act.
Irreparable injury
The court found the Applicant would suffer irreparable injury not adequately compensable by damages
The court reasoned that if the properties were alienated pending trial and the Applicant ultimately succeeded, they would never be recovered and damages would not suffice. Curiously, the judgment states the Applicant 'has not satisfied the second condition as laid down in Giella's case', yet proceeded to find the balance of convenience and grant the injunction - an internal inconsistency.
Balance of convenience
The balance of convenience lay with the Applicant as legal and beneficial proprietor
Following Pius Kipchirchir Kogo v Frank Kimeli Tenai and Amir Suleiman v Amboseli Resort Limited, the court held there was a lower risk of injustice in granting the temporary injunction than in refusing it, particularly as it had not interrogated the full documentary history of ownership. Preservation of the suit property was imperative pending full trial.
Mandatory injunction at interlocutory stage
Refused; premature to grant demolition/restoration orders at the interlocutory stage
Citing Shepard Homes v Sandham, Kenya Breweries v Washington Okeyo and Malier Unissa Karim v Edward Oluoch Odumbe, the court held the threshold for a mandatory injunction is higher than for a prohibitory one, and granting it would amount to granting the major part of the relief claimed, effectively finalizing the suit at the interlocutory stage.
Legal principles established
#- The three Giella conditions for an interlocutory injunction must all be satisfied sequentially
- A mandatory injunction will not be granted on an interlocutory application in the absence of special circumstances
- Costs follow the event unless the court for good reason orders otherwise
- A party ought not be allowed to retain a position of advantage obtained through a planned and blatant unlawful act
Court orders
#- 1.The Notice of Motion application dated 26th June, 2023 was found to have merit and allowed partially
- 2.Prayers No. 4 and 5 on the Notice of Motion (mandatory injunction and police compliance order) were declined
- 3.A temporary injunction was issued restraining the Defendants/Respondents from dealing, alienating, disposing, damaging, trespassing, entering upon, sub-dividing, advertising for sale, constructing on or interfering with the suit properties pending hearing and determination of the suit
- 4.Mention on 8th April, 2024 for Pre-Trial Conference under Order 11 and to consider consolidation of ELC No. 007 of 2023 and ELC No. E063 of 2023
- 5.Matter to be heard on 16th May, 2024
- 6.Costs of the application awarded to the Plaintiff/Applicant, borne by the Defendants/Respondents
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap. 21; Order 40 Rules 1, 2, 3 and 3(3) of the Civil Procedure Rules, 2010; Sections 3 and 19(1) of the Environment and Land Court Act, No. 19 of 2011; Article 159(1) and (2) and Article 40 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lmantia Leadismo (Suing as an administrator of the Estate of Leadismo Nee Wildmonika Ilona) v Mbugua & 2 others (Environment & Land Case E063 of 2023) [2024] KEELC 1050 (KLR)", Case Analysis (2024). ELC No. E063 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1050/eng@2024-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.