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ELCAllowedNot stated in the judgment (Petition filed at the Environment and Land Court, Mombasa)· [2025] KEELC 1319 (KLR)

Meli v Land Registrar, Mombasa Land Registry & 4 others (Environment & Land Petition E009 of 2024) [2025] KEELC 1319 (KLR)

Environment and Land Court
19 March 2025
2,175 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Mombasa court stopped the sale and eviction of a mother and her children from their home, protecting claimed matrimonial property rights until the full case is heard.

What this practically means

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Executive summary

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The petitioner, Shadia Mohamed Kipkorir Meli, moved the Environment and Land Court at Mombasa by notice of motion dated 9th April 2024 seeking a temporary injunction restraining the respondents from selling, advertising for sale, offering as security, or evicting her and her children from property known as C.R 62863/1 (Apartment No. 5, 5th Floor on Subdivision Number 16900), original number 8822/3 Section I Mainland North, pending determination of her petition. She contended that the property was declared matrimonial property in Mombasa Kadhi's Petition No. 184 of 2021; that her spousal consent to the charge was found by the DCI to be a forgery; that her caution was removed without notice; and that the threatened sale and eviction would render Mombasa H.C. Family Appeal No. 30 of 2022 nugatory. The 3rd respondent, through its CEO Jared Matwetwe Ondwari, opposed the motion, deposing that the 4th respondent took a loan of Kshs.5,700,000 secured by a legal charge with spousal consent, that the petitioner gave consent, and that she was willing to accept Kshs.700,000 as pronounced in the Kadhi's judgment. The court framed two issues: whether the petitioner met the injunction threshold, and who bears costs. Applying Giella v Cassman Brown as supplemented by Jan Bolden Nielsen and the lower-risk-of-injustice test, and Mrao Ltd on prima facie cases, the court found a prima facie case with probability of success, likely irreparable harm, and balance of convenience favouring the injunction, noting the best interests of the two minor children. The court allowed the application as prayed, issued the temporary injunction, and ordered the costs of the application to abide the outcome of the petition.

Key legal issues

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01

Whether the petitioner met the threshold for a temporary injunction

Holding

Yes. The petitioner established a prima facie case with probability of success, would likely suffer irreparable harm, and the balance of convenience favours the injunction, particularly given the best interests of her two minor children.

Reasoning

The suit property is registered in the 4th respondent's name and a charge dated 17th April 2021 was registered against the title. The petition raises arguable issues including violation of the petitioner's matrimonial property rights and removal of her caution without notice. The offered compensation of Kshs.700,000 cannot cure the harm of eviction of the petitioner and her minor children, who had previously been rendered destitute; the sentimental value and children's best interests weigh in favour of preserving the property pending trial.

p. 4
02

Who bears the costs of the application

Holding

Costs of the application were ordered to abide the outcome of the petition, notwithstanding the petitioner's success.

Reasoning

Although costs ordinarily follow the event and the petitioner succeeded in the application, the court considered that justice would be better served by deferring the question of costs until the substantive petition is determined.

p. 4

Legal principles established

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  • In interlocutory injunction applications the Giella v Cassman Brown principles remain the basic tests, but the court may also take whichever course carries the lower risk of injustice.
  • Where the defendant's complained-of act is or may be unlawful, damages are not an adequate remedy and the plaintiff need not be confined to damages.
  • A prima facie case in a civil application is a genuine and arguable case showing an apparently infringed right calling for explanation or rebuttal.

Court orders

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  1. 1.An order of temporary injunction restraining the respondents, their agents, servants, assigns and/or any other person whatsoever from selling, advertising for sale, offering as security and/or evicting the petitioner and/or her children from all that property known as C.R 62863/1 (Apartment No. 5, 5th Floor on Subdivision Number:16900) original number 8822/3 Section I Mainland North pending the hearing and determination of the petition filed herein.
  2. 2.The costs of the application to abide the outcome of the petition herein.

Authorities

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Cases cited (8)

  • Giella versus Cassman Brown & Company Limited
  • Jan Bolden Nielsen v Herman Phillipus Steya also known as Hermannus Phillipus Steyn & 2 Others
    (2012) eKLR
  • Suleiman vs Amboseli Resort Ltd
    (2004) eKLR 589
  • Films Rover International
    (1986) 3 All ER 772
  • Mrao Ltd versus First American Bank of Kenya Ltd
    (2003) eKLR
  • Said Almed versus Mannasseh Benga & Another
    [2019] eKLR
  • Aikman vs Muchoki
    (1984) KLR 353
  • Joseph Mbugua Gichanga vs Co-operative of Kenya Ltd
    (2005) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property and alleged violation of the petitioner's rights to matrimonial property and fair administrative action

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, "Meli v Land Registrar, Mombasa Land Registry & 4 others (Environment & Land Petition E009 of 2024) [2025] KEELC 1319 (KLR)", Case Analysis (2025). Not stated in the judgment (Petition filed at the Environment and Land Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1319/eng@2025-03-19

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