[2025] KEELC 4286 (KLR)

Kenya United Steel Company (2006) Limited v Mohiddin & another (Environment & Land Case E010 of 2025) [2025] KEELC 4286 (KLR) (5 June 2025) (Ruling)

Neutral citation: [2025] KEELC 4286 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case E010 of 2025

YM Angima, J

June 5, 2025

Between

Kenya United Steel Company (2006) Limited

Plaintiff

and

Ahmed Mohiddin

1st Defendant

Land Registrar Mombasa

2nd Defendant

Ruling

A. Plaintiff’s application 1. By a notice of motion dated 03. 02. 2025 expressed to be filed pursuant to Sections 3 and 3A of the Civil Procedure Act (Cap 21), Order 40 Rules, 1, 2 and 3 and Order 50 of the Civil Procedure Rules, the Land Act and all other enabling provisions of the law, the plaintiff prayed for a temporary injunction to restore the defendants from taking possession, invading, accessing, or trespassing upon Plot No.844/IV/MN CR 21st (the suit property) pending the hearing and determination of the suit.

2. The application was based upon the grounds set out on the face of the motion and the contents of the supporting affidavit sworn by Abid M. Alam on 03. 02. 2025 and the annexures thereto. The plaintiff pleaded that even though there was a previous suit over the suit property being Mombasa ELC No.470 of 2011 there was a pending appeal against the decree passed in favour of the 1st defendant. It also pleaded that during the pendency of the said appeal (being Mombasa Civil Appeal No. E141 of 2022) the 1st defendant had through fraud, misrepresentation and illegality caused the suit property to be registered in his name and that of other beneficiaries of the estate of the late Asila Binti Mwijabu. In particular, it was contended that the 1st defendant had filed fraudulent succession proceedings before the Kadhi’s court to facilitate the said transfer.

B. 1st defendant’s response 3. The 1st defendant filed a replying affidavit sworn on 01. 04. 2025 in opposition to the said application. It was deposed that the Wakf created over the suit property was nullified by the court in ELC NO. 470 of 2011 and the property vested in the estate of the late Asila Binti Mwijabu. It was further stated that the decree was registered against the title of the suit property before any stay order was granted in the pending appeal. The 1st defendant denied any fraud, misrepresentation or illegality in the succession proceedings and stated that there was no stay order at the material time to stop the succession process or confirmation of grant.

C. Directions on submissions 4. When the application was scheduled for directions, it was directed that the same shall be canvassed through written submissions. The parties were consequently granted timelines within which to file and exchange their submissions. The record shows that the plaintiff filed its submissions on 01. 04. 2025 whereas the 1st defendant’s submissions were not on record by the time of preparation of the ruling.

D. Issues for determination 5. The court has considered the plaintiff’s notice of motion dated 03. 02. 2025, the 1st defendant’s replying affidavit in opposition thereto as well as the material on record. The court is of the view that the following are the main issues which arise for determination herein;a.Whether the plaintiff has satisfied the principles for the grant of an interim injunction.b.Who shall bear costs of the application.

E. Analysis and determination a. Whether the plaintiff has satisfied the principles for the grant an interim injunction 6. The court has considered the material and submissions on record on this issue. In its written submissions, the plaintiff submitted that it had satisfied all the requirements for the grant of an injunction as set out in the case of Giella vs Cassman Brown & Co Ltd [1973]EA 358.

7. The principles for the grant of an interim injunction were summarized in the said case as follows;a.First, an applicant must demonstrate a prima facie case with a probability of success at the trial.b.Second, an injunction will not normally be granted unless the applicant might suffer irreparable loss or injury which cannot be compensated by an award of damages.c.In case the court is in doubt on second principle, it shall determine the application on a balance of convenience.

8. It is apparent from the material on record that the parties herein have previously litigated over the suit property in Mombasa ELC NO. 470 of 2011 by which the Wakf over the suit property was nullified and the property reverted to the estate of the Late Asili Binti Mwijabu. The plaintiff being aggrieved by the said decree preferred an appeal against it before the Court of Appeal at Mombasa.

9. It would appear that during the pendency of the appeal the 1st defendant moved the Kadhi’s Court in succession proceedings and he was appointed an administrator of the estate of the Asili Binti Mwijabu. It would further appear that upon confirmation of grant the 1st defendant together with some beneficiaries of the estate were registered as proprietors of the suit property.

10. It is obvious that the plaintiff was aggrieved by the proceedings which took place before the Kadhi’s court which resulted in the transfer of the suit property. The plaintiff considered such proceedings to have been fraudulent and irregular but it is not clear why it did not move the relevant court for setting aside the proceedings. The court is not persuaded that filing a fresh suit is the most efficacious manner of nullifying the actions which were undertaken pursuant to the confirmation of grant. The court is not persuaded that the entries complained of especially the transfer of the suit property to the beneficiaries of the estate of Asili Binti Mwijabu can be legitimately impeached without disturbing the underlying succession proceedings. The grant and confirmation of grant by the succession court cannot simply be ignored or wished away.

11. In the premises, the court is not persuaded that he plaintiff has demonstrated a prima facie case with a probability of success within the meaning of the 1st principle for the grant of an interim injunction. The question of whether or not there was a stay of execution of the decree in ELC NO. 470 of 2011 at the time the succession proceedings were undertaken is a matter which should be placed before the succession court as ground for setting aside those proceedings.

12. In view of the court’s finding that the plaintiff has not demonstrated a prima facie case, it shall not be necessary to consider the second and third principles. Thus the plaintiff’s application shall fail at the first of the three hurdles. Consequently, the court finds and holds that the plaintiff has failed to satisfy the principles for the grant of an interim injunction pending the hearing and determination of the suit.

b. Who shall bear costs of the application 13. Although costs of an action or proceeding are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. See Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd [1967] EA 287. The court finds no good reason to depart from the general rule. As a result, the 1st defendant shall be awarded costs of the application.

F. Conclusion and disposal order 14. The upshot of the foregoing is that the court finds no merit in the plaintiff’s application for an interim injunction. Consequently, the court makes the following disposal orders;

a.The plaintiff’s notice of motion dated 03. 02. 2025 is hereby dismissed with costs.b.The suit shall be mentioned on 08. 07. 2025 for pre-trial directions.Orders accordingly.

RULING DATED AND SIGNED AT MOMBASA AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 5TH DAY OF JUNE, 2025. ……………………Y. M. ANGIMAJUDGEIn the presence of:Gillian - Court assistantMr. Wasieba holding brief for Mr. Simiyu for plaintiffMr. Tindi for the 1st defendantMr. Kemei for AG for 2nd defendant