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ELCAllowedLand Case E118 of 2026

Said v Somsky Construction Company Ltd

Environment and Land Court
23 September 2026
2,673 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff moved the Environment and Land Court by Notice of Motion dated 27 March 2026 seeking a temporary injunction restraining Somsky Construction Company Limited from leasing, selling, disposing of or charging eleven properties (Nairobi Block 104/525 to 104/535, including 104/351) pending determination of the suit. He relied on two sale agreements dated 8 November 2024 for off-plan duplex apartments, each priced at USD 125,000 and USD 110,000, of which he paid USD 100,000 deposits in cash. He alleged construction was complete but the defendant refused to accept the balance or hand over vacant possession and had placed the properties on the market. The defendant, through its director, admitted executing the agreements but claimed they were executed as security or guarantee for a third party's (Mohamed Maalim Hassan's) debt to the plaintiff, subject to unfulfilled conditions; it also attacked the plaintiff's affidavit as defectively executed by initials, and objected to the merged prayer. The court framed two issues: the validity of the affidavit and the injunction threshold. Applying Order 19 Rule 7, it declined to expunge the affidavit. Applying Giella v Cassman Brown and Mrao, it found a prima facie case: the agreements were duly executed, most of the purchase price was paid, and the defendant's guarantee claims were absent from the agreements, amounting to an attempt to rewrite the contract contrary to National Bank of Kenya v Pipeplastic Samkolit. Irreparable harm and balance of convenience favoured the plaintiff. The motion was allowed with an injunction and costs in the cause.

Questions the Court framed

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

  1. 1.Whether the Plaintiff's supporting affidavit is defective and should be expunged
  2. 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

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01

Whether the supporting affidavit was defective for being executed by initials

Holding

The affidavit was not improperly executed and was not expunged.

Reasoning

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.

02

Whether the plaintiff established a prima facie case with a probability of success

Holding

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.

Reasoning

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.

03

Whether the plaintiff would suffer irreparable harm not compensable by damages, and where the balance of convenience lies

Holding

Yes - irreparable harm was established and the balance of convenience favours preserving the suit properties.

Reasoning

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

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  • 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

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  1. 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. 2.Costs in the cause

The bench

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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

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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.

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
p. 1Final orders - temporary injunction
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
p. 5Contract - parties bound by written terms
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.
Affidavit defects - Order 19 Rule 7
Further, that the balance of convenience tilts in favour of preserving the suit properties so that they are not disposed of.
p. 5Balance of convenience

Issues in the judgment

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minor

Conflicting dates for Hassan's affidavit

minor

Case number cited as Civil Appeal 950/1999 in text vs 95 of 1999 in citation

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, "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.