Mohamed & 33 others v Mautu (Enviromental and Land Originating Summons E002 of 2023) [2024] KEELC 6883 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicants met the Giella v Cassman Brown threshold for a temporary injunction
The application failed: no prima facie case was established and no irreparable loss was shown, though the court of its own motion ordered maintenance of the status quo.
The court applied Giella v Cassman Brown. The applicants' claim combined challenge to the respondent's title with an adverse possession claim by originating summons, making a prima facie case a 'herculean task'. Further, an unresolved question was whether the applicants were in possession of the suit property in 2021 or of the different parcel in Mombasa CMELC No. 266 of 2021, answerable only after full hearing. The applicants also failed to particularize irreparable loss.
Who pays the costs of the application
Costs were ordered to abide the outcome of the originating summons rather than follow the event.
Although section 27 of the Civil Procedure Act provides that costs follow the event unless otherwise ordered for good cause, the court found good reason to defer costs, given the application was interlocutory and the substantive originating summons remained pending.
Legal principles established
#- An applicant for a temporary injunction must establish a prima facie case with high chances of success, show irreparable loss not compensable by damages, and where in doubt the court decides on a balance of convenience (Giella v Cassman Brown).
- A claim based on adverse possession is directed against the registered owner; an applicant simultaneously challenging the respondent's title while prosecuting an adverse possession claim faces great difficulty establishing a prima facie case at the interlocutory stage.
Court orders
#- 1.The notice of motion dated the 20th February 2024 is without merit.
- 2.The said application is dismissed with costs to abide the outcome of this suit.
- 3.On the court's own motion, the parties to maintain the obtaining status quo on the suit property, ensuring no continuation of constructions or erection of structures/houses or new constructions of structures/houses, or digging of trenches on the said land, pending the hearing and determination of this suit.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a pending suit); no specific provision cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed & 33 others v Mautu (Enviromental and Land Originating Summons E002 of 2023) [2024] KEELC 6883 (KLR)", Case Analysis (2024). Not stated in judgment (notice of motion dated 20th February 2024 in an originating summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6883/eng@2024-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.