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ELCPartially AllowedNotice of motion dated 24th November 2025 (Malindi ELC)

Malimu v Mwaro (Sued as administrator of the Estate of the Late Simon Kafadzi Mwaro alias Simon Mwaro) & another (Environment and Land Case 155 of 2025) [2026] KEELC 2337 (KLR)

Environment and Land Court
21 April 2026
1,026 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who occupied and developed purchased land won a court order protecting her possession until trial, despite earlier cases against her sale.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Malindi (Mwangi Njoroge, J) on a notice of motion dated 24th November 2025 in which the plaintiff sought a temporary injunction restraining the defendants, administrators of the estate of Simon Kafadzi Mwaro, from interfering with Kilifi/Ngerenyi/303 pending trial. The plaintiff claimed she purchased and extensively developed the land from Dama Simon Mwaro, the widow and former administrator of the estate whose grant was revoked, and that the defendants' refusal to recognize her interest breached fiduciary duty. The defendants, through a replying affidavit of the first defendant John Charo Mwaro, contended that the sale to the plaintiff was cancelled and declared null and void in Malindi High Court Succession Cause No. 115 of 2022, that Malindi ELC Case No. 27 of 2018 (upheld by the Court of Appeal on 24th October 2025) had declared sales to the plaintiff irregular and fraudulent, and raised a preliminary objection on res judicata, abuse of process and unclean hands. The plaintiff denied misleading the court and asserted the previous suits did not involve the same issues. The court declined to determine the res judicata conflict at the interlocutory stage, holding it a matter for trial. Finding that whether Dama, as widow, had an interest she could validly sell was a triable issue, the court held a prima facie case was established; the plaintiff's occupation and extensive development satisfied the loss limb of the Giella v Cassman Brown test. The application was allowed in terms of prayer No. 3. Directions were issued for filing of trial bundles, pretrial was set for 15th June 2026, and costs of the application were made costs in the main suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has established a prima facie case with a probability of success
  2. 2.Whether the applicant would suffer loss and damage if the injunction is not granted
  3. 3.Whether the matter is res judicata the previous suits (a question left for the main hearing)

Key legal issues

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01

Whether a prima facie case was established for temporary injunction

Holding

Yes - the question whether Dama, as widow of the registered proprietor, had an interest she could sell to the plaintiff is a valid triable issue raising a prima facie case

Reasoning

The plaintiff's claim rests on a sale by Dama Simon Mwaro, widow of the registered owner Simon Kafadzi Mwaro, after revocation of the grant to Dama. The court found that whether Dama retained a beneficial interest she could pass by sale is a genuine triable issue, satisfying the first Giella limb without deciding the res judicata objection, which was reserved for trial.

p. 2
02

Whether the plaintiff would suffer irreparable loss absent an injunction

Holding

Yes - she is in occupation and has extensively developed the suit property, increasing its value

Reasoning

The court accepted the plaintiff's affidavit evidence of occupation and extensive development of Kilifi/Ngerenyi/303, which had increased in value since her purchase. This satisfied the second Giella limb, and the court proceeded to grant the injunction without needing to consider the third limb of damages.

p. 2
03

Whether the suit is res judicata

Holding

Not determined at this stage - reserved for the main hearing

Reasoning

The defendants argued that the suit is res judicata Malindi High Court Succession Cause No. 115 of 2022 and Malindi ELC Case No. 27 of 2018, upheld on appeal. The plaintiff contended the previous suits involved different issues and that the objection is not a pure point of law. The court held the conflict cannot be resolved on an interlocutory application.

p. 2

Legal principles established

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  • The Giella v Cassman Brown test governs the grant of interim injunctions
  • A single bona fide triable issue suffices to establish a prima facie case at the interlocutory stage

Court orders

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  1. 1.Temporary injunction granted in terms of prayer No. 3 of the notice of motion dated 24th November 2025, restraining the defendants from interfering with the suit land Kilifi/Ngerenyi/303 pending the hearing of the suit
  2. 2.Plaintiff to file and serve her trial bundle within 14 days from the date of the ruling
  3. 3.Defendants to file and serve their trial bundle(s) within 14 days from service of the plaintiff's bundle, or in any event within 14 days after expiry of the plaintiff's 14 days
  4. 4.Matter to be mentioned on 15th June 2026 for pretrial
  5. 5.Costs of the application to be costs in the main suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution / Environment and Land Court Act (court sits as ELC Malindi; not expressly cited)

Relief refused

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Determination of the res judicata objection at the interlocutory stage

The conflict as to res judicata cannot be determined in the ruling but only at the main hearing

p. 2

Costs

The costs of the present application shall be costs in the main suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The view of this court is that the applicant has satisfied the two main limbs of the test for the grant of an interim injunction set out in Giella v Cassman Brown 1973 EA 358.
p. 2Injunction test satisfied
I find that by that single issue; the plaintifi has raised a prima facie case for the consideration of this court.
p. 2Prima facie case
The costs of the present application shall be costs in the main suit.
p. 3Costs - final orders

Issues in the judgment

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minor

Registered owner's name appears inconsistently as 'Simon Kafazi Mwaro' and 'Simon Kafadzi Mwaro' within the judgment

minor

Repetitive paragraph 7 substantially restates paragraph 5 with garbled phrasing

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, "Malimu v Mwaro (Sued as administrator of the Estate of the Late Simon Kafadzi Mwaro alias Simon Mwaro) & another (Environment and Land Case 155 of 2025) [2026] KEELC 2337 (KLR)", Case Analysis (2026). Notice of motion dated 24th November 2025 (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2337/eng@2026-04-21

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