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ELCAllowedNotice of motion dated 08.03.2024 (suit over Malindi/MN/9586, originally No. 4088/2)· [2025] KEELC 4676 (KLR)

Basmer (Suing as the Administrator of the Estate of Ali Said Basmer - Deceased) v I & M Bank Limited & another (Environment and Land Case E018 of 2024) [2025] KEELC 4676 (KLR)

Environment and Land Court
19 June 2025
YAY. M. Angima
671 words in judgment
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The bottom line

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A Kenyan court blocked a bank from selling a family's Malindi land because the charge lacked the deceased owner's spousal consent and defendants never responded to the case.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Ali Said Basmer (deceased), moved the court by notice of motion dated 08.03.2024 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 2 of the Civil Procedure Rules seeking a temporary injunction restraining the defendants from interfering with her possession and quiet enjoyment of portion No. 9586 (originally No. 4088/2) Malindi, or from evicting her, demolishing, alienating or dealing with the property pending trial. She pleaded that the 1st defendant had in 2019 registered a charge over the property to secure an overdraft facility of up to Kshs. 15 million granted to Coast Battery Distributors without spousal consent as required by law; the person who purported to give spousal consent, Barikech Saad Rashid, was not a spouse of the deceased, who had only two wives and died on 23.10.2020. Statutory notices of sale dated 2022 and 2023 were addressed to the deceased after his death. No affidavit response was filed; the 2nd defendant declined to participate and the 1st defendant, despite adjournments, filed nothing. Holding the factual case uncontroverted, the court accepted the plaintiff's affidavit evidence as true, found a prima facie case with probability of success and a risk of irreparable injury, and allowed the motion in terms of prayer 3 pending trial, with costs in the cause. The ruling was delivered virtually on 19 June 2025 by Y. M. Angima, Judge.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success and irreparable injury for an interim injunction

Holding

The court accepted the plaintiff's uncontroverted affidavit evidence as true and found the two Giella principles satisfied, granting the injunction in terms of prayer 3.

Reasoning

The 1st defendant, though granted time, never filed a response to the application; the 2nd defendant declined to participate. The plaintiff pleaded a charge registered in 2019 over the deceased's property without valid spousal consent, with statutory notices addressed to a man who died in 2020. Unchallenged, this showed a prima facie case and a risk of irreparable harm not compensable by damages.

p. 2

Legal principles established

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  • Uncontroverted affidavit evidence may be accepted as true for purposes of an interlocutory injunction application

Court orders

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  1. 1.The notice of motion dated 08.03.2024 is hereby allowed in terms of order no. 3 thereof pending the hearing and determination of the suit
  2. 2.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 Rule 2
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 2 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Basmer (Suing as the Administrator of the Estate of Ali Said Basmer - Deceased) v I & M Bank Limited & another (Environment and Land Case E018 of 2024) [2025] KEELC 4676 (KLR)", Case Analysis (2025). Notice of motion dated 08.03.2024 (suit over Malindi/MN/9586, originally No. 4088/2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4676/eng@2025-06-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.