[2014] KEHC 2880 (KLR)
The court found that the applicants failed to meet the threshold for the grant of an interim injunction as set out in Geille v Cassman Brown 1979 EA. The evidence did not establish the existence of a valid Wakf in respect of the suit property, and the applicants did not demonstrate a prima facie case with a...
Source-derived case information.
- Citation
- [2014] KEHC 2880 (KLR)
- Parties
- Plaintiff: Gulam Rasul Mirdat; Plaintiff: Yusuf Musa Haji; Plaintiff: Nassor Mohamed Nahdy; Defendant: Bahrma Abdalla Abdulrahman Miran; Defendant: Mohamed Adam Abdulrahim; Defendant: The Land Registrar, Mombasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 98 of 2013
- Procedural Posture
- Interlocutory Injunction Application / Ruling on Interim Injunction Application
- Outcome
- application dismissed
- Judges
- SN Mukunya
- Legal Topics
- Wakf Disputes, Interim Injunctions, Quiet Possession, Eviction, Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gulam Rasul Mirdat
Plaintiff
Yusuf Musa Haji
Plaintiff
Nassor Mohamed Nahdy
Plaintiff
Bahrma Abdalla Abdulrahman Miran
Defendant
Mohamed Adam Abdulrahim
Defendant
The Land Registrar, Mombasa
Defendant
Procedural Posture
Interlocutory Injunction Application / Ruling on Interim Injunction Application
Legal Issues
- 1 Whether the applicants are entitled to an interim injunction restraining the defendants from interfering with the quiet possession of the suit property.
- 2 Whether the suit should proceed in the names of the plaintiffs as representatives of Abdulrehman Bin Miran Wakf.
- 3 Whether a valid Wakf exists in respect of the suit property.
Ratio Decidendi
The court found that the applicants failed to meet the threshold for the grant of an interim injunction as set out in Geille v Cassman Brown 1979 EA. The evidence did not establish the existence of a valid Wakf in respect of the suit property, and the applicants did not demonstrate a prima facie case with a probability of success. The respondents' denial of the Wakf, supported by a letter from the Wakf Commission of Kenya, further weakened the applicants' case. Consequently, the application for interim injunction was disallowed.
Court Disposition
application dismissed
Orders
- The application for interim injunction is disallowed.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 98 OF 2013
GULAM RASUL MIRDAT ...................................................... 1ST PLAINTIFF
YUSUF MUSA HAJI .............................................................. 2ND PLAINTIFF
NASSOR MOHAMED NAHDY ............................................. 3RD PLAINTIFF
- V E R S U S -
BAHRMA ABDALLA ABDULRAHMAN MIRAN .............1ST DEFENDANT
MOHAMED ADAM ABDULRAHIM ...................................2ND DEFENDANT
THE LAND REGISTRAR, MOMBASA ..............................3RD DEFENDANT
RULING
[1] The applicants filed a notice of motion dated 16th May, 2013. They ask for an interim injunction to restrain the 1st and 2nd defendants, by themselves their workmen, authorized agents and servants from carrying out eviction and or alienating or in any other way interfering with the quiet possession of the members of Shibu Mosque in respect of Title No. Mombasa/Block XVI/166 pending the hearing of this application. The applicants also ask the court to direct that this suit be continued in the names of the plaintiffs as representing Abdulrehman Bin Miran Wakf dated 30th March, 1972.
[2] The second defendant herein swore an affidavit dated 21st June, 2013. He averred that he is the grandson of the late Abdulrahman Miran. He is also an administrator of his Will. He annexed a copy of the grant. He deponed that they have taken possession of the property known as MSA/BLOCK/XVI/166. He denied that there was a Wakf as alleged by the applicants. He stated that his grandfather had built the Baluchi Mosque and that any bequest in a Wakf should have been made to that mosque. The 1st defendant denied that there is a Wakf. He produced a letter from the Wakf Commission of Kenya saying the alleged Wakf is not known to Wakf Commissioner of Kenya in Mombasa.
[3] I have read the submissions of both counsel in this matter. I have also considered their submissions in court before me. I have come to a considered opinion that the threshold of Geille v Cassman Brown 1979 EA has not been met.
I disallow the application with no order as to costs. The parties are well advised to take an early date for hearing the suit.
Dated and delivered in open Court at Mombasa this 18th day of September, 2014.
S. MUKUNYA
JUDGE
18. 9.2014
In the presence of:
Mr. Oloo advocate for Khatib advocate for the defendant
Mr. Wangalwa advocate for Apollo Muinde Advocate