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ELCPartially Allowed· [2024] KEELC 6134 (KLR)

Busaidy & 2 others v Bukhala (As Personal Representative of the Estate of Zacharia Bukhala Deceased) & 3 others (Environment & Land Case E022 of 2024) [2024] KEELC 6134 (KLR)

Not stated in the judgment (a judge's court sitting at Mombasa)
24 September 2024
1,477 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Mombasa court declined a formal injunction but froze the situation, ordering both sides to keep the status quo until the case is fully heard.

What this practically means

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Executive summary

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This is a ruling by N.A. Matheka, J, delivered at Mombasa on 24th September 2024, on a Notice of Motion dated 25th June 2024 brought under Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 1B (erroneously cited as 2B) and 34 of the Civil Procedure Act. The Applicants (described in the ruling as Defendants/Applicants) sought temporary injunctions restraining the Respondents, their agents, employees or 'goons' from trespassing on, harassing or threatening eviction of tenants from a commercial building on Plots Mombasa/Block XX/200 and Mombasa/Block XX/201, pending inter partes hearing and determination of the suit. The Applicants deponed, through an affidavit of Josphat Bukhala, that they own the building, are lessees of the plots as shown in searches, and that on 7th May and 24th June 2024 the Respondents caused trespass and threats of eviction, exposing them to irreparable loss as tenants threatened to vacate. The court applied the Giella v Cassman Brown tests as restated in Nguruman Limited, adopting Mrao Ltd's definition of a prima facie case, and Pius Kipchirchir Kogo, Paul Gitonga Wanjau and Amir Suleiman on irreparable injury and balance of convenience. Finding a prima facie case established, and that a lower risk of injustice lay in granting relief given the matter had not been heard on its merits, the court ordered that status quo be maintained pending the hearing and determination of the case, with costs in the cause.

Key legal issues

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01

Whether the Defendants/Applicants established a prima facie case with irreparable injury and balance of convenience to warrant a temporary injunction

Holding

Yes. The court found a prima facie case was established, that there was a lower risk of injustice in granting the orders, and ordered status quo to be maintained pending the hearing and determination of the suit, with costs in the cause.

Reasoning

The court applied the Giella v Cassman Brown principles as restated in Nguruman Limited. The Applicants showed by searches that they are lessees of the suit plots and owners of the commercial building thereon with tenants in occupation. It was not disputed that tenants operate businesses in the building. Having not heard the matter on its merits, the court found the lower risk of injustice lay in restraining the parties, and maintained the status quo rather than issuing a formal injunction.

p. 4

Legal principles established

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  • The conditions for a temporary injunction are a prima facie case, irreparable injury not compensable in damages, and balance of convenience, applied as sequential hurdles.
  • Where the court has not considered a matter on its merit, the lower risk of injustice may favour maintaining the status quo.

Court orders

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  1. 1.Status quo be maintained pending the hearing and determination of the case
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure ActSections 1A, 1B (cited as 2B) and 34

Cases cited (6)

  • Giella vs Cassman Brown (1973) EA 358
    (1973) EA 358
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR
    CA No.77 of 2012 (2014) eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd (2003) EKLR
    (2003) EKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR
    (2018) eKLR
  • Paul Gitonga Wanjau vs Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR
    (2016) eKLR
  • Amir Suleiman vs Amboseli Resort Limited (2004) eKLR
    (2004) eKLR
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules and Sections 1A, 1B and 34 of the Civil Procedure Act

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, "Busaidy & 2 others v Bukhala (As Personal Representative of the Estate of Zacharia Bukhala Deceased) & 3 others (Environment & Land Case E022 of 2024) [2024] KEELC 6134 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6134/eng@2024-09-24

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