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ELCDismissedELC Mombasa (amended notice of motion dated 23rd March 2023, as amended 4th April 2023)· [2024] KEELC 4616 (KLR)

Niaz v Niaz & 2 others (Environment & Land Case 4 of 2023) [2024] KEELC 4616 (KLR)

Environment and Land Court
12 June 2024
2,836 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to block a family land dispute from proceeding, saying the claimant could be paid money if he wins later.

What this practically means

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Executive summary

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The plaintiff moved the court by notice of motion dated 23rd March 2023, as amended on 4th April 2023, seeking a temporary injunction restraining the defendants from demolishing structures on, evicting him from, selling, disposing of or interfering with L.R MN/1/16839–16843, Mombasa (the Nyali property), pending the hearing of the suit. He claimed the 1st and 2nd defendants, executors of the will of Niaz Mohamed Janmohamed, defrauded him of an inheritance valued at about Kshs.612 million, and alternatively claimed the Nyali property by adverse possession, having occupied it for 15 years. The 2nd and 3rd defendants deponed that the parcels are subdivisions of property bequeathed to the 2nd defendant, now registered in the 3rd defendant's name, and that the plaintiff and his father occupied them with permission and agreed on rent; the 1st defendant denied mismanaging the estate. The court framed two issues: whether the plaintiff established a prima facie case with a probability of success, and costs. Applying Giella v Cassman Brown and Mrao v First American Bank, the court held that the undisputed origin of the suit properties from the 2nd defendant's bequest, the higher standard of proof in fraud, and the need for trial evidence on adverse possession meant no prima facie case was established. The plaintiff's valuation of his claim at Kshs.612 million showed damages would be an adequate remedy. The application was dismissed with costs of the application abiding the outcome of the suit, given the family relationship between the parties.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

He did not. The suit properties are undisputedly subdivisions of property bequeathed to the 2nd defendant and registered in the 3rd defendant's name; the plaintiff's fraud and adverse possession claims require full trial evidence, and fraud carries a higher standard of proof

Reasoning

The court noted the plaintiff's own pleadings confirmed the suit parcels originated from property bequeathed to the 2nd defendant and transferred to the 3rd defendant. His compensation claim depended on proving fraud, which requires cogent evidence, and his adverse possession claim was contradicted by allegations of permissive occupation. Both required viva voce evidence at trial, so no prima facie case was made out at the interlocutory stage.

p. 5
02

Whether the plaintiff would suffer irreparable loss not compensable by damages

Holding

No. The plaintiff valued his claimed inheritance at Kshs.612 million, showing his claim is capable of valuation and monetary award

Reasoning

Where a claim is quantifiable in financial terms, damages are an adequate remedy and an interlocutory injunction is not warranted. The plaintiff's own valuation of his inheritance at Kshs.612 million demonstrated that any success at trial could be compensated monetarily, defeating the irreparable-loss limb of the Giella test.

p. 5
03

Where the balance of convenience lies and the appropriate costs order

Holding

The balance of convenience tilts against the injunction in the absence of evidence of fraud; costs should abide the outcome of the suit given the family relationship between the parties

Reasoning

Without evidence of fraud to vitiate the transfers to the 3rd defendant, the balance of convenience favours leaving the registered proprietor in possession. Although the application was dismissed, the court, invoking its discretion notwithstanding section 27 of the Civil Procedure Act, ordered costs of the application to abide the outcome of the main suit because the dispute is between close family members.

p. 5

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with a probability of success, irreparable damage not compensable by damages, and that the balance of convenience tilts in his favour (Giella v Cassman Brown; Mrao Ltd v First American Bank of Kenya)
  • A claim of compensable inheritance cannot sustain an injunction where the loss is quantifiable in money terms
  • Adverse possession cannot be determined on affidavit evidence at the interlocutory stage where occupation is disputed as being permissive

Court orders

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  1. 1.The plaintiff's amended notice of motion dated the 4th April 2023 is without merit and is dismissed.
  2. 2.The costs in the application to abide the outcome of the suit.

Authorities

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Legislation

  • Civil Procedure Actsection 27

Cases cited (2)

  • Giella versus Cassman Brown & Company Limited
    [1973] EA 258
  • Mrao Ltd versus First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land in Mombasa County (interlocutory injunction application in a land suit)

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, "Niaz v Niaz & 2 others (Environment & Land Case 4 of 2023) [2024] KEELC 4616 (KLR)", Case Analysis (2024). ELC Mombasa (amended notice of motion dated 23rd March 2023, as amended 4th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4616/eng@2024-06-12

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