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ELCDismissedNot stated in judgment (Notice of Motion dated 23rd June 2023)· [2024] KEELC 1259 (KLR)

Daula Mohamed Omar t/a Nairobi Bahati Njema Investment v Ali & 3 others (Environment & Land Case 48 of 2023) [2024] KEELC 1259 (KLR)

Environment and Land Court
7 March 2024
MNMwangi Njoroge
1,703 words in judgment
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The bottom line

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A Kenyan court refused to freeze disputed land because the buyer sued the wrong person—her claim targeted the broker, not the registered owner.

What this practically means

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Executive summary

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The plaintiff, Daula Mohamed Omar, moved the Environment and Land Court at Malindi by Notice of Motion dated 23rd June 2023, brought under Sections 1A, 3A and 63 of the Civil Procedure Act and Orders 40 Rule 1 and 51 Rule 1 of the Civil Procedure Rules, seeking interlocutory injunctions restraining the 3rd Defendant from alienating, encumbering, disposing of, wasting, damaging or otherwise interfering with Land Parcel Registration No. Kilifi/Mtondia/948, pending hearing of the application and the suit, plus costs. The plaintiff alleged that in 2014 she engaged the 1st Defendant, a property broker, to acquire the suit property from the 2nd Defendant; the purchase price of Kshs. 1,500,000 was paid in full, but the transfer was never effected, and she later discovered the property had been fraudulently transferred and ultimately gifted by the 2nd Defendant to the 3rd Defendant, on whose behalf construction was ongoing. The 1st Defendant substantially concurred with the plaintiff's averments. The 2nd and 3rd Defendants opposed, contending that the plaintiff never obtained Land Control Board consent, rendering the sale agreement null and void, and that she was entitled only to a refund from the vendor; the 2nd Defendant also noted the removal of a caution by court order. The sole issue was whether the plaintiff met the threshold for injunctive relief. Applying Giella v Cassman Brown as restated in Nguruman Limited v Jan Bonde Nielsen, the court held the plaintiff had not established a prima facie case against the 3rd Defendant, the registered title holder, her grievance lying against the 1st Defendant. The other Giella pillars did not therefore fall for consideration. The application was dismissed with costs in the cause, by judgment delivered electronically at Malindi on 7th March 2024.

Key legal issues

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Whether the plaintiff established a prima facie case with a probability of success to warrant an interlocutory injunction against the 3rd Defendant

Holding

The application was dismissed because the plaintiff failed to establish a prima facie case; the suit property is already registered in the name of the 3rd Defendant, who received it as a gift from the 2nd Defendant, and the plaintiff's claim is properly against the 1st Defendant

Reasoning

The court applied the Giella v Cassman Brown test as restated in Nguruman Limited v Jan Bonde Nielsen, holding the three conditions are sequential hurdles. The plaintiff's claim arose from the failed 2014 sale transaction brokered by the 1st Defendant, involving alleged fraud and a criminal matter. Since the property had been validly transferred by gift to the 3rd Defendant, a registered title holder, the plaintiff disclosed no arguable right against the 3rd Defendant. Having failed the first pillar, the other two fell away.

p. 3

Legal principles established

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  • A prima facie case is an arguable case showing an infringement of a right or probability of success, not a case that must succeed
  • Where a prima facie case is not established, the applicant need not and the court need not consider irreparable injury and balance of convenience

Court orders

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  1. 1.The Notice of Motion dated 23rd June 2023 is dismissed
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A & 63
  • Civil Procedure Rules 2010Order 40 Rule 1 (and 40(1)(a) and (b))
  • Civil Procedure Rules 2010Order 51 Rule 1

Cases cited (3)

  • Giella v Cassman Brown & Company Limited
  • Nguruman Limited –v– Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Moses C. Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others
    (2014) eKLR
Jurisdiction invoked
Sections 1A, 3A & 63 of the Civil Procedure Act; Order 40 Rule 1 and Order 51 Rule 1 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, "Daula Mohamed Omar t/a Nairobi Bahati Njema Investment v Ali & 3 others (Environment & Land Case 48 of 2023) [2024] KEELC 1259 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 23rd June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1259/eng@2024-03-07

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