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ELCPartially AllowedELC No. E063 of 2023· [2024] KEELC 1050 (KLR)

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)

Environment and Land Court
20 February 2024
12,315 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~49 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff/Applicant, Lmantia Leadismo, administrator of the estate of his late wife Monika Ilona Leadismo Nee Wild, moved the Environment and Land Court at Mombasa by Notice of Motion dated 26th June 2023 under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 40 of the Civil Procedure Rules and Article 40 of the Constitution. He sought a temporary injunction restraining the Defendants/Respondents from dealing with, alienating or interfering with over twenty-nine parcels of land in Mtwapa, Kilifi County (the suit properties), which had devolved to him through a Certificate of Confirmation of Grant in Mombasa PM's Succession Cause No. 373 of 2018, plus a mandatory injunction to demolish structures erected by the Defendants and an order to the OCS Mtwapa Police Station to enforce compliance. The Defendants filed a Replying Affidavit through the 1st Defendant claiming ownership without documentation; they did not file submissions. The court framed three issues. It found the Applicant had established a prima facie case as the lawful registered proprietor whose title and Article 40 rights were threatened by invasion, tree-cutting and illegal construction by persons asserting 'non-locals should not own land in Kilifi or Mombasa'. Though it observed the Applicant had not strictly satisfied the irreparable-injury limb, it found the balance of convenience favoured him and granted a temporary injunction preserving the suit properties pending trial. The mandatory injunction and police-compliance prayers were declined as premature at the interlocutory stage. Costs of the application were awarded to the Plaintiff, to be borne by the Defendants. The matter was set for pre-trial mention on 8th April 2024 and hearing on 16th May 2024, with consideration of consolidation with ELC No. E007 of 2023 (John Mbugua & Others v Monikas Private Bush Safaris Limited).

Key legal issues

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01

Prima facie case for temporary injunction

Holding

The Applicant established a prima facie case as the lawful registered proprietor whose right may be infringed

Reasoning

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.

02

Irreparable injury

Holding

The court found the Applicant would suffer irreparable injury not adequately compensable by damages

Reasoning

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.

03

Balance of convenience

Holding

The balance of convenience lay with the Applicant as legal and beneficial proprietor

Reasoning

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.

p. 18
04

Mandatory injunction at interlocutory stage

Holding

Refused; premature to grant demolition/restoration orders at the interlocutory stage

Reasoning

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.

p. 20

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 26th June, 2023 was found to have merit and allowed partially
  2. 2.Prayers No. 4 and 5 on the Notice of Motion (mandatory injunction and police compliance order) were declined
  3. 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. 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. 5.Matter to be heard on 16th May, 2024
  6. 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

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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, "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.