Salim Soud Ali Bin Salim v Mjad Investments Limited & 4 others [2013] KEELC 55 (KLR)
The bottom line
#Mombasa's Environment and Land Court blocked a buyer from dealing with three contested Mombasa properties, ruling that serious fraud questions meant the land had to be preserved until trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant had established a prima facie case with a probability of success
- 2.Whether the applicant would suffer irreparable injury not compensable in damages
- 3.Whether the balance of convenience favoured the applicant
- 4.Whether an injunction should issue to preserve the suit properties pending hearing and determination of the suit
Key legal issues
#Whether the applicant satisfied the Giella v Cassman Brown criteria for an interlocutory injunction
Yes; the applicant established a prima facie case with a probability of success, likely irreparable injury, and the balance of convenience in his favour, warranting an injunction preserving the suit properties
The court found serious issues as to how the three suit properties changed hands. The purported vendor/administrator was charged with nine counts of forgery and false pretences in respect of the suit premises; officers of the 1st defendant were cited as prosecution witnesses; the Land Registrar admitted the real administrator was identified by an advocate's secretary and imposed a restriction on the titles. The purchaser's payment of Kshs. 200 million despite a distribution order showing 61 beneficiaries and expiring leases troubled the court. These matters, unresolved at the interlocutory stage, favoured preservation of the properties.
Whether the 1st defendant's acquisition of the suit properties was above board
Doubtful; the circumstances of the transaction raised serious questions of fraud to be tried at the hearing
The court noted the purchaser and its lawyers apparently kept a blind eye to the order of distribution for 61 beneficiaries, paid a staggering price for properties whose leases were months from expiry, and the Land Registrar restricted dealings upon discovering fraudulent dealing. These unresolved issues could not be determined at the interlocutory stage but supported the grant of an injunction pending trial.
Legal principles established
#- The grant of a temporary injunction requires establishment of a prima facie case with a probability of success, irreparable injury which damages cannot adequately compensate, and if in doubt the court decides on the balance of convenience
Court orders
#- 1.A permanent injunction restraining the 1st defendant, its servants, agents or anyone acting under or instructed by it, from disposing of, selling, alienating, transferring, charging, collecting rent, constructing, wasting or in any manner dealing with or interfering with MOMBASA/BLOCK/XXI/498, MOMBASA/BLOCK/XXI/151 and MOMBASA/BLOCK XXI/152 until final determination of the suit
- 2.Costs of the application to be in the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over land disputes (notice of motion for temporary injunction); no specific provision stated in the judgment
Relief refused
#Compelling the 1st defendant to show cause why the registers should not be rectified in the plaintiff's favour
Not addressed in the final orders; only the injunction was granted
Deposit of all rents accruing from the suit properties in Court
Not granted in the final orders; the injunction expressly restrains collection of rent instead
Costs
The costs of this application shall be in the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I grant a permanent injunction restraining the 1st defendant whether by himself, its servants or agents or anyone acting under it, or instructed by it or its lawful agent from disposing of, selling, alienating, transferring, charging, collecting rent, constructing wasting or in any other manner whatsoever and however dealing or interfering with the properties known as MOMBASA/BLOCK/XXI/498, MOMBASA/BLOCK/XXI/151, MOMBASA/BLOCK XXI/152 until final determination of this suit.
The applicant herein meets the standards set out in Geilla v Cassman Brown [1973] EA 358. He has established a prima facie case with a probability of success. He has also shown that he is likely to suffer irreparable injury and the balance of convenience favours him.
The costs of this application shall be in the suit.
Issues in the judgment
#The court grants what it labels a 'permanent injunction' but expressly limits it 'until final determination of this suit', which is the hallmark of a temporary/interlocutory injunction
The case name of the leading injunction authority is misspelt as 'Geilla v Cassman Brown' instead of 'Giella v Cassman Brown'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim Soud Ali Bin Salim v Mjad Investments Limited & 4 others [2013] KEELC 55 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/55/eng@2013-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.