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ELCPartially AllowedNot stated in judgment· [2024] KEELC 7345 (KLR)

Salim (Suing in his Capacity as a Duly Constituted Attorney of Naswha Said Mohammed Lemky) v Al-Ahmed t/a Hajarul Aswad Children Center, Hajarul Aswad Muslim School and Nurul Hudaa Academy (Civil Suit 32 of 2022) [2024] KEELC 7345 (KLR)

Environment and Land Court
7 November 2024
2,755 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 Malindi court allowed a landowner to update his lawsuit but refused to immediately force a school and businesses off disputed land before full trial.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Malindi (Mwangi Njoroge, J) on the plaintiff's application dated 11th June 2024, brought under Article 159(2)(d) of the Constitution and Orders 8 and 40 of the Civil Procedure Rules. The plaintiff, who sued in May 2022 for breach of a November 2016 charitable donation of land Title CR. 67354 at Mtwapa, sought leave to amend his plaint to add prayers for mandatory injunctions compelling the defendant to demolish part of a perimeter wall blocking the Muslim community's access to a mosque, to close Nurul Hudaa Integrated Academy, and to cease commercial activities on the suit land. The defendant opposed through grounds of opposition and submissions, arguing the amendments were late, substituted a new cause of action, and that the injunction orders were final relief sought at interlocutory stage. The court framed two issues: leave to amend and entitlement to a mandatory injunction. On amendment, it held that amendments sought before hearing should be freely allowed absent injustice, noting the hearing had not commenced and the defendant could not be prejudiced. It therefore granted prayer 1 (leave to amend). On the injunctions, applying the Giella v Cassman Brown principles as distinguished for mandatory relief in Shepard Homes v Sandham, the court held that no special circumstances were shown, the defendant was entitled to respond to the unserved amended pleadings, and final mandatory orders could not issue at interlocutory stage where ownership is contested. Prayers 2 to 6 were dismissed. Directions were given for filing and service of the amended plaint within 7 days, hearing preparation timelines of 21 and 42 days, and a mention on 23rd January 2025. No costs order was made.

Key legal issues

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01

Leave to amend plaint

Holding

Leave granted; amendments do not alter the cause of action and hearing had not commenced, so no prejudice

Reasoning

The court applied the settled rule that amendments sought before hearing should be freely allowed absent injustice. Since the hearing had not commenced and the defendant could amend her own pleadings and be compensated by costs, allowing the amendment served determination of the real questions in controversy. The amendments were found not to substitute a new cause of action.

p. 5
02

Mandatory injunction at interlocutory stage

Holding

Refused; no special circumstances and orders sought are final in nature

Reasoning

Distinguishing Giella v Cassman Brown prohibitory injunction principles, the court adopted Shepard Homes v Sandham on the nature of mandatory injunctions. The defendant had not been served with the amended pleadings and was entitled to respond; granting final relief unheard would be unjust and could lay waste to property before the suit is determined. Ownership is contested and belongs at trial.

p. 5

Legal principles established

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  • Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice, injustice being curable by costs
  • A mandatory injunction requires positive steps as distinct from a prohibitory injunction which requires abstention
  • Final mandatory injunction orders cannot be granted at interlocutory stage absent special circumstances, particularly where pleadings grounding them have not been served

Court orders

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  1. 1.Leave granted to amend the Plaint in terms of prayer no. 1 only
  2. 2.Prayers 2 to 6 of the application dismissed
  3. 3.Applicant to file and serve an original, customarily colour coded copy of the amended plaint within 7 days, in default of which the orders lapse and the main suit to be set down for hearing
  4. 4.Plaintiff to prepare for hearing within 21 days and defendant within 42 days
  5. 5.Suit to be mentioned on 23/1/2025 for confirmation of compliance and issuance of a hearing date

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 8 rules 3, 5 and 8; Order 40
  • Civil Procedure ActSection 100

Cases cited (9)

  • Ochieng & Others v First National Bank of Chicago
    Civil Appeal No. 147 of 1991 (unreported)
  • St. Patrick's Hill School Ltd v Bank of Africa Kenya Ltd
    (2018) eKLR
  • Emerge Development Limited v Chestnut Uganda Limited & another
    (2020) eKLR
  • Giella v Cassman Brown
    1973 E.A. Page 358
  • Shepard Homes v Sandham
    (1970) 3 WLR Pg. 356
  • Locabail International Finance Limited v Agro Export and Others
    (1986) All ER 906 / (1986) 1 All ER 901
  • Malindi Air Services & Another v Hakima Abdinoor Hassan
    Civil Application No. 202 of 1998
  • Lucy Wangari Gachana v Minudi Okemba Love
    (2015) eKLR
  • Joshua Kimani v. Kiso Enterprises Ltd & 3 others
    [2020] eKLR
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya; Order 8 rules 3, 5 and 8 and Order 40 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, "Salim (Suing in his Capacity as a Duly Constituted Attorney of Naswha Said Mohammed Lemky) v Al-Ahmed t/a Hajarul Aswad Children Center, Hajarul Aswad Muslim School and Nurul Hudaa Academy (Civil Suit 32 of 2022) [2024] KEELC 7345 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7345/eng@2024-11-07

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