Said v Ebrahim (Environment & Land Case 78 of 2021) [2024] KEELC 1672 (KLR)
The bottom line
#The Environment and Land Court in Mombasa dismissed a landowner's bid to reverse an earlier ruling, confirming that Kenyan courts will not reopen decided matters without strong grounds.
What this practically means
#Executive summary
#Key legal issues
#Review of the ruling of 27th July 2023
Review refused; the ruling contained no eviction order but only directions for filing of pleadings, and the applicant demonstrated no ground under Section 80/Order 45 Rule 1
The court examined the ruling of 27th July 2023 and found it merely allowed the Defendant's application for injunction and leave to file defence and counterclaim, with directions for hearing. There was no eviction order capable of review. The criminal case cited did not establish perjury or non-disclosure. Allowing review would amount to re-opening a determined matter contrary to the finality of litigation.
Stay of execution
Stay refused; the Applicant failed to demonstrate substantial loss or satisfy the conditions under Order 42 Rule 6
The court noted that stay of execution is discretionary and must balance the applicant's right of appeal against the respondent's fruits of judgment. Here there was no eviction order to stay since the 27th July 2023 ruling was procedural. The applicant did not establish substantial loss, promptness or the other prerequisites for stay.
Interlocutory injunction
Injunction refused; no prima facie case, no irreparable harm not compensable by damages, and balance of convenience favours the Defendant
Applying Giella v Cassman Brown, the court found it admitted that the Defendant owns the two ground floors of the suit property and receives rental income, with the only dispute being ownership of the whole floor. The Plaintiff failed to show a prima facie case with probability of success, failed to demonstrate irreparable harm incapable of monetary compensation, and the balance of convenience tilted towards the Defendant who was not enjoying the full rental income.
Costs
Each party to bear their own costs, considering that the Defendant never filed replies to the application
Although costs ordinarily follow the event under Section 27 of the Civil Procedure Act, the court exercised its discretion in the interest of justice, taking into account that the Defendant/Respondent never filed any replies to the application despite being served, and ordered each party to bear their own costs of the motion.
Legal principles established
#- Review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 is limited to discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason analogous to those grounds, and must be made without unreasonable delay
- A review application whose effect would be to re-open a determined case afresh will not be allowed
- Litigation must come to an end; parties must present all their facts, documents and evidence at the appropriate time and cannot prosecute their case piecemeal
- Ordinarily costs follow the event unless the court for good reasons orders otherwise (Section 27, Civil Procedure Act)
Court orders
#- 1.The Notice of Motion application dated 19th October, 2023 be and is found to lack merit hence it is dismissed in its entirety
- 2.Status Quo to be maintained, meaning all rental income garnered from the suit premises with effect from 1st April, 2024 to be deposited and held in an Escrow Joint bank account in a reputable commercial financial institution in the names of both the Advocate for the Plaintiff and the Defendant (the Law firm of Messrs. Maulidi O.A Advocates and Wachira King'ang'ai Advocates)
- 3.The Defendant granted 30 days to put their house in order on the issue of appointment of Legal Representatives under Order 24 of the Civil Procedure Rules, 2010, the Laws of Succession Act, Cap. 160 or the Muslim Laws
- 4.The hearing date fixed for 18th March, 2024 vacated until further notice; mention on 29th April, 2024 for progress and further directions
- 5.Each party to bear their own costs of the Notice of Motion application dated 19th October, 2023
- Jurisdiction invoked
- Inherent jurisdiction under Sections 1, 1A, 3A and 63(c) & (e) of the Civil Procedure Act, Cap. 21; Order 22 Rules 22 & 25 and Order 44 Rules 1, 5 & 9 of the Civil Procedure Rules; Articles 7, 40 and 50(e) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said v Ebrahim (Environment & Land Case 78 of 2021) [2024] KEELC 1672 (KLR)", Case Analysis (2024). Notice of Motion dated 19th October, 2023 (suit re: Plot No. Mombasa/Block XVI/487, Majengo). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1672/eng@2024-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.