Mohamed Ahmed Dahia & 3 others v Abbey Hassan Maalim [2020] eKLR Case Summary

Court
Environment and Land Court at Garissa
Category
Civil
Judge(s)
E.C. Cherono
Judgment Date
October 30, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief

1. Case Information:
- Name of the Case: Mohamed Ahmed Dahia & Others v. Abbey Hassan Maalim
- Case Number: ELC NO. 2 OF 2020
- Court: Environment and Land Court at Garissa
- Date Delivered: 30th October 2020
- Category of Law: Civil
- Judge(s): E.C. Cherono
- Country: Kenya

2. Questions Presented:
The court must resolve whether the plaintiffs have established a prima facie case to warrant the issuance of a temporary injunction against the defendant, preventing him from trespassing on their land and conducting construction activities.

3. Facts of the Case:
The plaintiffs, Mohamed Ahmed Dahia, Osman Hassan Affey, Mohammed Nun Affey, and Mohammed Hassanot Mohamed, are registered owners of several parcels of land (numbers 31235 to 31241) located in Mandera township. They allege that the defendant, Abbey Hassan Maalim, has unlawfully trespassed on their land and is in the process of erecting a water plant. The plaintiffs claim to hold indefeasible titles to the land, while the defendant contends that he was allotted land by the defunct Mandera County Council in 2009 for the same purpose and has been in possession since then.

4. Procedural History:
The plaintiffs filed a Notice of Motion on 14th February 2020, seeking urgent orders for a temporary injunction against the defendant. The defendant responded with a replying affidavit, asserting his claim to the property and alleging that the plaintiffs' titles are forgeries. After reviewing the submissions and affidavits from both parties, the court considered the legal principles governing the issuance of injunctions.

5. Analysis:
- Rules: The court referenced the principles established in *Giella v. Cassman Brown & Co. Ltd (1973) EA 358*, which require an applicant for an injunction to demonstrate a prima facie case, the likelihood of suffering irreparable harm, and the balance of convenience favoring the injunction.
- Case Law: The court cited *Mrao Limited v. First American Bank of Kenya (2003) KLR 125*, which defined a prima facie case, and *Suleiman v. Amboseli Resort Ltd (2004) KLR 589*, emphasizing the importance of maintaining the status quo to prevent greater injustice.
- Application: The court found that the plaintiffs had established a prima facie case based on their registered titles, which are considered evidence of ownership under Section 26 of the Land Registration Act. The defendant's claims of forgery were not substantiated with evidence. The court determined that allowing the defendant to continue construction would result in irreparable harm to the plaintiffs, thus favoring the issuance of the injunction.

6. Conclusion:
The court ruled in favor of the plaintiffs, granting the temporary injunction to restrain the defendant from any further dealings with the disputed property pending the resolution of the case. The court emphasized the importance of protecting the plaintiffs' rights until the matter could be fully adjudicated.

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

8. Summary:
The court's decision to grant the temporary injunction highlights the significance of property rights and the protection of registered titles in land disputes. This ruling reinforces the principle that registered landowners are entitled to protection against unlawful trespass, and it sets a precedent for future cases involving similar issues of land ownership and trespass in Kenya.

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