Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case Number 010 of 2024· [2026] KEELC 5720 (KLR)

Abubakar Mohamed Swaleh v Abdulrahman Mohamed Swaleh & Another

Environment and Land Court
24 September 2026
MNMwangi Njoroge
1,462 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled that temporary injunctions can only be granted while a lawsuit is actually pending, not after it has been struck out.

What this practically means

#

Executive summary

#
The plaintiff applied by notice of motion dated 20th January 2026 for a temporary injunction restraining the defendants from interfering with land parcel Lamu Block 1/310, pending an intended appeal to the Court of Appeal. He asserted he purchased the property in 1992, had occupied, developed and leased it for over 30 years, and feared harassment of his tenants and irreparable loss. His underlying suit had been terminated on 22nd May 2025 for non-compliance with court orders, and his application for reinstatement was dismissed on 18th December 2025. The defendants opposed, arguing that no suit existed in which interim relief could issue, that no prima facie case or irreparable harm was shown, and that the applicant came to court with unclean hands. The court noted that a related suit, Malindi ELC Case Number E005 of 2026, had been withdrawn on 3rd February 2026, so nothing else was pending. Holding that Order 40 of the Civil Procedure Rules permits temporary injunctions only during the pendency of a suit, and that although an appeal is a civil proceeding, injunctive relief in appellate circumstances must be sought before the court where the appeal is actually pending - here the Court of Appeal, not the ELC - the court found the application lacked merit and dismissed it with costs on 24th September 2026.

Key legal issues

#
01

Whether a temporary injunction can issue where the substantive suit has been struck out and only an intended appeal to the Court of Appeal exists

Holding

No. Injunctive relief presupposes a pending suit; with the suit struck out and no appeal pending before this court, the court would be granting interim relief in a legal vacuum.

Reasoning

The court noted the plaintiff's suit was struck out on 22nd May 2025 for non-compliance with orders, and the reinstatement application was dismissed on 18th December 2025. Order 40 CPR permits temporary injunctions only 'in any suit' to preserve property in dispute until disposal of the suit. Although an appeal is itself a civil proceeding, an injunction in appellate circumstances must be sought before the court where the appeal is pending. Here the intended appeal lies to the Court of Appeal, not this court, so no jurisdictional basis exists for the injunction.

p. 5

Legal principles established

#
  • Temporary injunctions under Order 40 CPR may only issue during the pendency of a suit to preserve the subject matter; they cannot issue where the suit has been struck out and no appeal is pending before the court applied to.

Court orders

#
  1. 1.The application dated 20th January 2026 is dismissed with costs to the 3rd and 4th defendants
Jurisdiction invoked
Environment and Land Court jurisdiction under the ELC Act; application brought under Order 40 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abubakar Mohamed Swaleh v Abdulrahman Mohamed Swaleh & Another", Case Analysis (2026). ELC Case Number 010 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5720/eng@2026-09-24

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