Faiza Abdullah Said Al – Amry & another v Moses Mbugua Kehta [2016] eKLR

Key Facts

Issues

• Whether a mandatory interlocutory injunction for eviction can be granted at this stage, considering the defendant's prior occupation and the ongoing litigation in NBI ELC no. 5 of 2014.
• Whether the plaintiffs, as registered owners of the property, are entitled to possession pending the suit's determination, given the defendant's physical occupation and claims of lawful possession.
• Whether both parties abused the court process by filing duplicate suits without full disclosure, particularly regarding the property's ownership and prior legal actions.

Holdings

• The court ruled that the plaintiffs' claim to possession via registration alone is insufficient without lawful procedures. It highlighted that the parties' actions risked subverting justice through procedural manipulation and that the cases cited by the plaintiffs (Everlyn Design College, Sergio Lieman, etc.) did not support their interlocutory application. The decision mandates each party to bear their own costs.
• The court denied the plaintiffs' application for a temporary injunction and mandatory order to evict the defendant from the property. It found no merit in the motion, as granting the orders would prematurely determine the suit and the plaintiffs failed to follow due process for vacant possession. The court emphasized that the applicants must gain access lawfully and that both parties abused the court process by filing duplicate suits without full disclosures.

Remedies

• The court directed that each party bear their own costs of the application, given the lack of merit in the plaintiffs' motion.
• The court denied the plaintiffs' applications for a temporary injunction and mandatory order against the defendant to vacate the property, as these were considered premature and likely to prejudice the substantive trial.

Legal Principles

• The court noted the parties' history of filing multiple suits over the same property in different jurisdictions, suggesting potential application of res judicata principles. The defendant argued that the plaintiffs' claims were an attempt to circumvent existing proceedings in NBI ELC No 5 of 2014, which the court acknowledged as a procedural issue.
• The judge ruled that the plaintiffs failed to meet the standard of proof for their claims, as they did not provide evidence of lawful possession (e.g., sale agreement, payment records) or justify the break-in order as a valid method of obtaining vacant possession. The defendant's physical occupation was deemed sufficient to meet the burden of demonstrating possession.
• The court denied the plaintiffs' application for an interim injunction to restrain the defendant from interfering with their possession of the land, citing that mandatory orders cannot be granted at the interlocutory stage without a full trial. The judge emphasized that the substantive issues of ownership and possession require resolution through the main suit rather than an interlocutory application.

Precedent Name

• Michael Mugo Vs Nelson Nthiga
• Sergio Lieman vs Tonica Investments & another
• Katsuri Ltd Vs Nyeri wholesalers
• Everlyn Design College vs A.G

Cited Statute

• Civil Procedure Rules
• Civil Procedure Act
• Constitution of Kenya
• Land Registration Act

Judge Name

Passage Text

• 18. Similarly, the Everlyn college case supra was a final judgment. The Sergio Lieman case, the decision was made in favour of the respondent and is therefore of no use to the Applicants claim. In the Michael Mugo case, the injunction was refused on the basis that it amounted to evicting the plaintiff/respondent from the suit land. All the cases referred do not support the prayers sought at this stage of these proceedings. Since the substantive prayers sought in the plaint are mandatory orders of injunction and eviction of the defendant from the suit premises, granting the prayers sought the present application will result in the suit being determined by an interlocutory application. Consequently I find no merit in the motion and I decline to grant the orders sought in therein.
• 19. Although the Applicants claim is that they are the registered owners of the suit property hence vested with rights under article 40 of the constitution, it is prudent that they gain access in a lawful manner in the application as it will render this suit going for full trial a mere academic exercise. The orders sought are denied and each party to bear their costs of the application.
• 15. Going through the annexed court proceedings filed by the parties herein, I find them both guilty of abusing the court's process because of filing duplicity suits seeking orders to suit their particular circumstances and without making full disclosures.