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)

is res judicata the two previous suits, and that it is an abuse of the court process. Finally, the deponent states that the plaintifi has come to court with unclean hands as she has allegedly withheld material information in order to misinform and mislead the court. 3. In her supplementary afidavit dated 4th February 2026, the plaintifi denied having misled the court, and stated that she had furnished the court with the correct information. 4. In her replying afidavit ostensibly in opposition to the Notice of Preliminary Objection dated 14th January 2026 raising the issue of Res Judicata, the plaintifi stated that the issues raised in the present suit were never heard and finally determined on merit by any court of competent jurisdiction; that the previous proceedings mentioned by the defendants did not involve the same issues, directly or substantially, as the issues here in. However, the plaintifi added that she has proprietary interest in the suit land because she purchased and developed the same and that she is an innocent purchaser thereof. She also stated that the issues raised in the Preliminary Objection require the court to ascertain facts and evidence and therefore do not meet the threshold of a pure point of law. Analysis and Determination 5. The plaintifi’s claim is that despite the revocation of grant of letters of administration issued to Dama Simon Mwaro (the former administrator of the Estate of Simon Kafadzi Mwaro), the said Dama, notwithstanding her demise, still retains a beneficial interest and is entitled to a share in the estate of the late Simon Kafadzi Mwaro; that the plaintifi has extensively developed the land that she purchased from Dama; that the defendants, as current administrators of the estate, are legally obligated to honour the lawful transactions entered into by Dama owing to the latter’s still existing interest in the land; that the defendants’ actions as administrators are now creating a cloud of uncertainty over Dama's interest in the suit land; that the defendants’ failure or refusal to recognize the plaintifi’s interest constitutes a breach of their fiduciary duty and has occasioned to the plaintifi immense loss and damage. 6. This court notes that the plaintifi is asking that there be a temporary injunction restraining the defendants from interfering with the portion of land that she occupies and which she alleged to have developed extensively. There is a confiict as to whether the present matter is res judicata or not, which cannot be determined in the present ruling but only in the main hearing. 7. The plaintifi’s claim is that despite the revocation of the grant of letters of administration issued to Dama Simon Mwaro, (the former administrator of the state of Simon Kafadzi Mwaro), she still retains a beneficial interest and is entitled to a share invested of the late Simon Mwaro. It is true that Dama was widow to Simon Mwaro and the valid triable issue therefore arises as to whether she had an interest which she could sell on her own behalf to the plaintifi. I find that by that single issue; the plaintifi has raised a prima facie case for the consideration of this court. 8. As for whether the plaintifi would sufier loss and damage if they order sought were not granted, this court is of the view is that she would. She is in occupation of the suit premises and she has ably demonstrated by evidence in the supporting afidavit that she has extensively developed the suit property such that it has increased in value since her purchase. 9. 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. Consequently, I find that the application dated 24th of November 2025 has merit and it is hereby granted in terms of prayer No. 3. 10. The plaintifi shall ensure that she has filed and served her trial bundle within 14 days from today and the defendants shall file and serve their trial bundle or bundles within 14 days from the date of service of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2337/eng@2026-04-21 2

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the plaintifi’s bundle upon them, or in any event within 14 days after the expiry of the 14 days granted to the plaintifi for the same purpose. 11. The matter will be mentioned on 15th June 2026 for pretrial. 12. The costs of the present application shall be costs in the main suit. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 21ST DAY OF APRIL, 2026. MWANGI NJOROGE, JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2337/eng@2026-04-21 3

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