Tamu Rafiki Real Estate Limited v Belec Veronique t/a Caribou Kijani Real Estate Limited (Environment and Land Appeal E043 of 2025) [2026] KEELC 2315 (KLR)
The bottom line
#Kenya's Environment and Land Court narrowed a resort-wide injunction to one villa, confirming courts must restrain only the property actually in dispute.
What this practically means
#Executive summary
#Key legal issues
#Stay of proceedings pending payment of costs in a prior withdrawn suit
The magistrate correctly dismissed the application for stay; sufficient cause was not established and statutory mechanisms exist for recovering costs
The earlier Mombasa suit was withdrawn for territorial jurisdiction and the present suit filed. The court held that recovery of costs is governed by the Advocates Remuneration Order, Sections 28-51 of the Civil Procedure Act and Order 21 of the Civil Procedure Rules, and that no written rule bars a party from prosecuting a subsequent suit before settling costs. The appellant had not even shown a taxed bill or certificate of costs. Interference with that discretionary finding was not warranted.
Whether the interlocutory injunction/preservation orders were properly granted
Yes, in substance - the respondent showed a prima facie case, potential irreparable loss and balance of convenience justifying preservation of the suit property pending trial
The magistrate found the plaintiff had produced payment receipts for part of the purchase price, had been placed in occupation, and that the defendant did not refute receiving the money or the eviction. The appellate court, applying Mbogo v Shah and the restraint on interfering with discretion, found no error in preserving the substratum of the suit property pending trial.
Scope of the injunctive orders - entire Jua Resort versus Villa No. 11 only
The magistrate erred in restraining dealings with the entire Jua Resort (12 villas) when the suit concerned only Villa No. 11A; the orders were varied to cover only one villa
The orders exceeded the pleadings and were issued without notice to the owners of the other 11 villas. The appellate court corrected the record to confine the restraint to Villa No. 11 so as to protect the interests of the appellant and third-party villa owners while still preserving the property actually in dispute.
Return of the plaintiff's personal belongings and refusal of refund of Kshs 10,000/-
The order for release of the plaintiff's belongings was proper; eviction without notice rendered any storage/penalty charges unlawful unjust enrichment, but refund of Kshs 10,000/- must await trial
The magistrate found the applicant was denied access to recover her belongings despite reporting to police, and that laying claim to storage fees after a prior claim on the belongings amounted to unjust enrichment. The appellate court held she did not misdirect herself, since the eviction was carried out without notice. The Kshs 10,000/- refund was properly left for the substantive hearing.
Legal principles established
#- An appellate court will not interfere with a lower court's exercise of discretion unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take account of relevant considerations, or the decision is plainly wrong
- The three limbs of the Giella v Cassman Brown test are sequential hurdles an injunction applicant must surmount
- A party is not barred from proceeding with a separate suit before settling costs awarded in a previous withdrawn suit
- Interlocutory injunctive or preservation orders must be confined to the property in dispute and parties heard; orders extending over property not the subject of the suit, without notice to affected owners, are erroneous
Court orders
#- 1.The dismissal of the application dated January 27, 2025, on the stay of proceedings pending the settlement of costs is upheld
- 2.The final orders issued on August 13, 2025, on the application dated January 7, 2025, are varied so that the restraint applies only to Villa No. 11 (one villa), part of Jua Resort, pending hearing and determination of the main suit
- 3.The defendant (appellant) is ordered to promptly return all of the plaintiff's (respondent's) personal belongings taken from Villa No. 11A at Jua Resort in original condition without damage, pending the suit's hearing and determination; these orders are confirmed
- 4.No order as to costs concerning the appeal
- 5.The matter before the Lower Court to 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
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 (Environment and Land Appeal E043 of 2025) [2026] KEELC 2315 (KLR)", Case Analysis (2026). Malindi ELC Appeal (Memorandum of Appeal dated August 14, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2315/eng@2026-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.