Tamu Rafiki Real Estate Limited v Belec Veronique t/a Caribou Kijani Real Estate Limited (Land Case Appeal E043 of 2025) [2026] KEELC 2088 (KLR)
The bottom line
#Kenya's Environment and Land Court narrowed an injunction over a Watamu resort to one villa, confirming courts cannot restrict property beyond what a lawsuit actually covers.
What this practically means
#Executive summary
#Key legal issues
#Stay of proceedings pending payment of costs in a withdrawn prior suit
The trial magistrate correctly dismissed the application; sufficient cause was not shown and costs are recoverable through the statutory taxation and execution machinery
The former Mombasa suit was withdrawn for territorial jurisdiction and refiled in Malindi. The magistrate correctly applied Order 25 Rule 3, the Advocates Remuneration Order, Sections 28-51 of the Civil Procedure Act and Order 21 on recovery of taxed costs. The court found no basis for impeding the ownership litigation by conditioning it on payment of an untaxed bill.
Grant of interlocutory injunction / preservation orders
The magistrate properly found a prima facie case, irreparable harm and balance of convenience, since the respondent had paid substantially for the villa and was in occupation before eviction; the court would not disturb the exercise of discretion
The magistrate evaluated the payment receipts, registration documents and occupation, and the appellant did not refute receipt of the money or the eviction. Applying Giella, Mrao, Nguruman, Amir Suleiman and Kogo, she found a lower risk of injustice in granting preservation orders. The appellate court held she guided herself correctly and would not interfere.
Scope of the injunction - entire resort versus one villa
The magistrate erred in extending the injunction to the entire Jua Resort (12 villas) when the suit concerned only Villa No. 11A and the owners of the other villas were not heard or notified; the order was varied to cover Villa No. 11 only
This was the only ground the appellate court found meritorious. Extending preservation orders over property not the subject of the suit, without notice to or hearing the other villa owners, wrongly affected third parties. The record was corrected so that preservation pending trial applies only to the one villa in dispute.
Return of the respondent's personal belongings and storage fees
The order for release of the plaintiff's belongings was upheld; eviction without notice made any storage charges an unlawful unjust enrichment
The magistrate found the respondent attempted to recover her belongings with police assistance but was denied access, and that the defendant's claim for storage fees after an unnotified eviction amounted to unjust enrichment. The appellate court found no misdirection in that finding, as the eviction was carried out without notice.
Legal principles established
#- An appellate court will not interfere with a lower court's discretionary decision merely because it would have reached a different result; interference requires misdirection in law, misapprehension of facts, consideration of irrelevant or disregard of relevant matters, or a plainly wrong decision
- There is no rule barring a party from proceeding with a fresh suit after withdrawing an earlier suit merely because costs in the withdrawn suit remain unpaid
- Interlocutory injunctive orders must be confined to the subject matter actually in suit and before the court; preservation orders cannot extend to property not the subject of the claim without notice to affected owners
Court orders
#- 1.The dismissal of the application dated January 27, 2025, on the stay of proceedings pending settlement of costs is upheld
- 2.The final orders issued on August 13, 2025 on the application dated January 7, 2025 are varied: the appellant is restrained from entering into, transferring, alienating, leasing, disposing of, charging or handling Villa No. 11 (one villa) only, part of Jua Resort inside Rafiki Tamu Residence, Watumu, Jacaranda Road, Plot 2019 (Ex 1870), pending hearing and determination of the main suit
- 3.The order that the defendant return the plaintiff's personal belongings taken from Villa No. 11A in original condition without damage pending hearing is confirmed
- 4.No order as to costs of the appeal
- 5.The matter before the Lower Court be fast-tracked for hearing and final disposal
- On appeal from
- Chief Magistrate's Court, Malindi (ELC)
- ELC Case No. E001 of 2025
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Chief Magistrate's Court in environment and land matters under Article 162(2)(b) of the Constitution and the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tamu Rafiki Real Estate Limited v Belec Veronique t/a Caribou Kijani Real Estate Limited (Land Case Appeal E043 of 2025) [2026] KEELC 2088 (KLR)", Case Analysis (2026). Malindi ELC Appeal arising from Malindi Chief Magistrate's ELC Case No. E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2088/eng@2026-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.