Said v Somsky Construction Company Ltd
The bottom line
#A Nairobi court stopped a developer from selling eleven properties a buyer had mostly paid for, ruling the developer could not add new terms to their signed agreements.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff's supporting affidavit is defective and should be expunged
- 2.Whether the Plaintiff has established the threshold for grant of an interlocutory injunction restraining the Defendant from interfering with the suit properties pending the outcome of the suit
Key legal issues
#Whether the supporting affidavit was defective for being executed by initials
The affidavit was not improperly executed and was not expunged.
The court applied Order 19 Rule 7 of the Civil Procedure Rules, which permits reception of affidavits notwithstanding defects in form or technicality. On perusal of the affidavit and the provision, the court found no improper execution as alleged and declined to expunge the affidavit from the record.
Whether the plaintiff established a prima facie case with a probability of success
Yes - duly executed sale agreements existed, most of the purchase price was paid, and the defendant's guarantor/security claim was not reflected in the agreements.
The court noted duly executed sale agreements and that the defendant did not deny receipt of most of the purchase price. The defendant's claims about a guarantee arrangement were never included in the impugned agreements, amounting to an attempt to rewrite the contract contrary to National Bank of Kenya v Pipeplastic Samkolit. The plaintiff adhered to the agreement terms.
Whether the plaintiff would suffer irreparable harm not compensable by damages, and where the balance of convenience lies
Yes - irreparable harm was established and the balance of convenience favours preserving the suit properties.
The court found the plaintiff would suffer harm not compensable by damages if the defendant sold the properties for which he had paid most of the purchase price. The balance of convenience tilted in favour of preserving the properties so they are not disposed of pending determination of the suit.
Legal principles established
#- A party cannot seek to rewrite the express terms of a written contract through extrinsic averments.
- A court may receive an affidavit notwithstanding defects in form or technical irregularity.
Court orders
#- 1.Pending hearing and determination of the suit, a temporary injunction restraining the Defendant, its agents, servants, employees and assigns from leasing, offering for sale, disposing of, selling, charging or otherwise dealing with the suit properties erected on Nairobi Block 104/525 to 104/535 (including 104/351) in Nairobi County
- 2.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land and interests in land (Article 162(2)(b) Constitution); not expressly stated in the ruling
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Pending hearing and determination of this suit, an order of temporary injunction be and is hereby issued restraining the Defendant/ Respondent, its agents, servants, employees, assigns or otherwise howsoever from leasing, offering for sale, disposing of, selling, charging or otherwise in any way dealing with all those properties
It seems to me that the Defendant seeks to attempt to purport to rewrite the terms of the contract between them and this is contrary to the principles as set out in the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another
I do not find that the said affidavit is improperly executed as claimed by the Defendant and will decline to expunge it from the record.
Further, that the balance of convenience tilts in favour of preserving the suit properties so that they are not disposed of.
Issues in the judgment
#Conflicting dates for Hassan's affidavit
Case number cited as Civil Appeal 950/1999 in text vs 95 of 1999 in citation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said v Somsky Construction Company Ltd", Case Analysis (2026). Land Case E118 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5577/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.