Mbarak Brek v Nassir Abdalla Said [2020] eKLR Case Summary

Explore the key findings and implications of the Mbarak Brek v Nassir Abdalla Said [2020] eKLR case. Delve into this case summary to understand its legal significance and outcomes.

Case Brief: Mbarak Brek v Nassir Abdalla Said [2020] eKLR

1. Case Information:
- Name of the Case: Mbarak Brek v. Nassir Abdalla Said
- Case Number: ELC NO. 84 OF 2019
- Court: Environment and Land Court at Mombasa
- Date Delivered: 21st September 2020
- Category of Law: Civil
- Judge(s): C.K. Yano
- Country: Kenya

2. Questions Presented:
The central legal issue in this case is whether the court should grant the plaintiff an injunction to restrain the defendant from trespassing onto the plaintiff’s property and discharging sewage into the plaintiff's septic tank pending the resolution of the suit.

3. Facts of the Case:
The plaintiff, Mbarak Brek, is the registered owner of Plot No. Mombasa/Block XVIII/511, while the defendant, Nassir Abdalla Said, owns the adjacent Plot No. Mombasa/Block XVIII/512. The plaintiff alleges that the defendant has illegally moved the boundary markers between their properties, trespassed onto the plaintiff's plot, and connected a sewage system to the plaintiff's septic tank without permission. This has resulted in the plaintiff incurring significant expenses due to the rapid filling of his septic tank. The defendant counters that there was a prior agreement regarding the shared use of the septic tank and denies any encroachment onto the plaintiff's land.

4. Procedural History:
The plaintiff filed an application on 14th May 2019 seeking an injunction against the defendant's actions. The defendant opposed this application through a replying affidavit on 18th October 2019, arguing that the issues had been previously resolved in a criminal case and that the plaintiff's application was an abuse of the court process. The court invited both parties to submit written arguments for consideration.

5. Analysis:
- Rules: The court considered the conditions for granting a temporary injunction as established in *Giella v. Cassman Brown & Company Limited (1973) EA 358*, which requires the applicant to show a prima facie case, demonstrate the risk of irreparable injury, and evaluate the balance of convenience.
- Case Law: The court referenced the *Giella* case to outline the necessary conditions for granting an injunction. The defendant also cited a previous ruling from Mombasa RMC Criminal Case No. 2558 of 2011 to argue that the boundary dispute had been resolved.
- Application: The court found that the plaintiff failed to establish a prima facie case, as the agreement presented by the defendant indicated a joint responsibility for the septic tank. The court concluded that the plaintiff could be compensated with damages if the defendant was found at fault, and the balance of convenience favored maintaining the current situation until the case was fully heard.

6. Conclusion:
The court dismissed the plaintiff's application for an injunction, ruling that the plaintiff did not meet the necessary legal standards to warrant such relief. The ruling underscores the importance of demonstrating a prima facie case in injunction applications and highlights the relevance of any existing agreements between parties regarding property use.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The ruling in *Mbarak Brek v. Nassir Abdalla Said* concluded with the dismissal of the plaintiff's application for a temporary injunction. This case is significant as it illustrates the court's adherence to established legal standards for injunctions and the importance of prior agreements in property disputes. The decision emphasizes the need for clear evidence when alleging trespass and nuisance in civil disputes.