Salim (Suing in his Capacity as a Duly Constituted Attorney of Naswha Said Mohammed Lemky) v Al-Ahmed t/a Hajarul Aswad Children Center, Hajarul Aswad Muslim School and Nurul Hudaa Academy (Civil Suit 32 of 2022) [2024] KEELC 7345 (KLR)
The bottom line
#A Malindi court allowed a landowner to update his lawsuit but refused to immediately force a school and businesses off disputed land before full trial.
What this practically means
#Executive summary
#Key legal issues
#Leave to amend plaint
Leave granted; amendments do not alter the cause of action and hearing had not commenced, so no prejudice
The court applied the settled rule that amendments sought before hearing should be freely allowed absent injustice. Since the hearing had not commenced and the defendant could amend her own pleadings and be compensated by costs, allowing the amendment served determination of the real questions in controversy. The amendments were found not to substitute a new cause of action.
Mandatory injunction at interlocutory stage
Refused; no special circumstances and orders sought are final in nature
Distinguishing Giella v Cassman Brown prohibitory injunction principles, the court adopted Shepard Homes v Sandham on the nature of mandatory injunctions. The defendant had not been served with the amended pleadings and was entitled to respond; granting final relief unheard would be unjust and could lay waste to property before the suit is determined. Ownership is contested and belongs at trial.
Legal principles established
#- Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice, injustice being curable by costs
- A mandatory injunction requires positive steps as distinct from a prohibitory injunction which requires abstention
- Final mandatory injunction orders cannot be granted at interlocutory stage absent special circumstances, particularly where pleadings grounding them have not been served
Court orders
#- 1.Leave granted to amend the Plaint in terms of prayer no. 1 only
- 2.Prayers 2 to 6 of the application dismissed
- 3.Applicant to file and serve an original, customarily colour coded copy of the amended plaint within 7 days, in default of which the orders lapse and the main suit to be set down for hearing
- 4.Plaintiff to prepare for hearing within 21 days and defendant within 42 days
- 5.Suit to be mentioned on 23/1/2025 for confirmation of compliance and issuance of a hearing date
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution of Kenya; Order 8 rules 3, 5 and 8 and Order 40 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim (Suing in his Capacity as a Duly Constituted Attorney of Naswha Said Mohammed Lemky) v Al-Ahmed t/a Hajarul Aswad Children Center, Hajarul Aswad Muslim School and Nurul Hudaa Academy (Civil Suit 32 of 2022) [2024] KEELC 7345 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7345/eng@2024-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.