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ELCAllowedLamu/Block 1/310 suit (notice of motion dated 28/10/2024)· [2025] KEELC 1301 (KLR)
Swaleh v Swaleh & 4 others (Land Case E010 of 2024) [2025] KEELC 1301 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#A Malindi court stopped all parties from interfering with disputed Lamu property until trial, after the buyer showed old sale documents worth explaining.
What this practically means
#Executive summary
#The Plaintiff moved the Environment and Land Court at Malindi by notice of motion dated 28/10/2024, grounded on sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules, seeking to restrain the 1st to 4th Defendants from interfering with his quiet enjoyment of property known as Lamu/Block 1/310 pending the hearing of the suit, plus costs. He alleged he purchased the property from the 3rd Defendant by agreement dated 16/3/1992 for Kshs. 780,000/-, took possession, renovated it and placed tenants, and that the 4th Defendant, acting as attorney of the 3rd Defendant, threatened tenants with eviction and disconnected electricity. Only the 3rd and 4th Defendants responded through a replying affidavit sworn by Ghalib Ahmed Alwy, who maintained the 1st Defendant is deceased, denied any sale agreement (alleging forgery), asserted the Plaintiff had never occupied the property and that his tenants entered in 2012, and sought dismissal with costs. Parties did not attend the hearing on 17/2/2025, but the court proceeded to determine the application on merit. Applying the settled Giella principles as restated in Charter House Investment Ltd and the sequential approach in Kenya Commercial Finance Co. Ltd v Afraha Education Society, and the Mrao definition of a prima facie case, the court found the Plaintiff's sale agreement and leases warranted rebuttal from the Defendants. Holding that the serious allegations could not be resolved at interlocutory stage, the court allowed the motion in prayer (b), ordered maintenance of the status quo, directed an affidavit on the 1st Defendant's alleged death, set timelines for trial bundles, and listed the suit for mention on 7/4/2025, with costs of the motion in the cause.
Key legal issues
#01
Whether the Plaintiff established a prima facie case warranting an interlocutory injunction
Holding
Yes; the Plaintiff's sale agreement of 16/3/1992 and leases warranted a rebuttal from the Defendants, justifying maintenance of status quo
Reasoning
The Plaintiff produced a sale agreement dated 16/3/1992 and leases over the suit property. Although the 4th Defendant alleged forgery and denied any sale, the court held the material presented warranted rebuttal. Serious allegations by both parties could not be resolved at interlocutory stage, so preserving the substratum of the suit required maintaining the status quo pending full trial.
p. 3
Legal principles established
#- The conditions for an interlocutory injunction are sequential: the second condition can only be addressed if the first is satisfied
- A prima facie case is a genuine and arguable case showing an apparent right infringed, calling for rebuttal
Court orders
#- 1.Notice of motion dated 28/10/2024 allowed as prayed in prayer (b): 1st-4th Defendants restrained from interfering with the suit property pending hearing and determination of the suit
- 2.Costs of the motion in the cause
- 3.Prevailing status quo regarding the suit land to be observed by all parties; no interference with the land or the title until hearing and determination of the suit
- 4.Ghalib Ahmed Alwy to file an affidavit within 14 days demonstrating that the 1st defendant Abdulrahim Mohamed Swaleh is deceased and the date of his demise
- 5.Hearing of the suit to be expedited; deliberate delay to be sanctioned including by payment of costs
- 6.Plaintiff granted 14 days to file and serve supplementary trial bundle, lists and witness statements, duly paginated and indexed
- 7.Defendants to file and serve trial bundles, lists and witness statements within 28 days, duly paginated and indexed
- 8.Witness statements to be drafted with elaboration on exhibits so they can be adopted at hearing with minimal comments
- 9.Suit listed for mention on 7/4/2025 to ascertain compliance and issue a hearing date
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Swaleh v Swaleh & 4 others (Land Case E010 of 2024) [2025] KEELC 1301 (KLR)", Case Analysis (2025). Lamu/Block 1/310 suit (notice of motion dated 28/10/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1301/eng@2025-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.