Ganiji (Suing as the Personal Representative of the Estate of Mohsinali Jiwali Ganijee) v Ultra-Modern Homes Limited & another (Environment & Land Case E029 of 2024) [2025] KEELC 1205 (KLR)
The bottom line
#A Mombasa court refused to stop a Kshs 1 billion construction, ruling the landowner waited too long and can be paid money damages instead.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interim injunction
The plaintiff failed to demonstrate a prima facie case with a probability of success because her claim sought to stop construction on the defendants' own Plot No. 85.
Applying the Giella principles and Mrao's definition of a prima facie case, the court found that the plaintiff did not show an apparent infringement of a right. Her suit sought to restrain construction on Plot No. 85, which is owned and occupied by the defendants, so on the material presented she could not establish a right apparently infringed calling for rebuttal.
Irreparable injury and balance of convenience
Damages can adequately compensate the plaintiff, and the balance of convenience favours the defendants given their Kshs 1 billion project and the plaintiff's possible inability to compensate them if the injunction is wrongly granted.
The court applied Nguruman: an injury is irreparable only where damages are inadequate. Here the alleged damage to walls, gates and pipes was measurable with reasonable accuracy. Conversely, stopping a Kshs 1 billion development would expose the defendants to losses the plaintiff could not compensate, and her five-month delay before suing compounded the inequity.
Restoration order at interim stage
A restoration order is a final remedy which can only be granted at the conclusion of the suit, not on an interlocutory application.
Having found that any injury suffered by the plaintiff is compensable in damages, the court declined to grant the restoration prayer at the interim stage, holding that such relief is properly determined after full trial of the suit.
Costs of the application
Costs follow the event; the unsuccessful applicant must pay the defendants' costs.
Relying on the proviso to Section 27 of the Civil Procedure Act and Giella, the court held that where an injunction application is dismissed, costs should be awarded against the applicant. No good reason was found to depart from the general rule.
Legal principles established
#- A prima facie case in civil cases requires evidence showing an infringement of a right and probability of success at trial, being a standard higher than an arguable case.
- An injury is irreparable only where it cannot adequately be compensated by an award of damages or measured with reasonable accuracy.
- A party guilty of laches delays forfeits the equitable remedy of injunction.
Court orders
#- 1.The notice of motion dated 15.04.2024 be and is hereby dismissed in its entirety.
- 2.The defendants are hereby awarded costs of the application.
- 3.For the avoidance of doubt, any interim orders in place are hereby vacated.
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63 of the Civil Procedure Act and Order 40 Rule 1 and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ganiji (Suing as the Personal Representative of the Estate of Mohsinali Jiwali Ganijee) v Ultra-Modern Homes Limited & another (Environment & Land Case E029 of 2024) [2025] KEELC 1205 (KLR)", Case Analysis (2025). Notice of motion dated 15.04.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1205/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.