Mwangi v Skyview Gardens Limited & another (Environment and Land Case E542 of 2025) [2026] KEELC 1995 (KLR)
The bottom line
#The court dismissed her injunction application because she had already lost the same fight in an earlier case—choose one forum first, not both.
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 further affidavit and submissions are properly on record.
- 2.Whether the Plaintiff has met the threshold for interim protection pending arbitration.
Key legal issues
#Whether a further affidavit and submissions filed out of time without leave should be expunged
The court admitted them, finding no demonstrated prejudice and invoking the overriding objective against procedural technicality
The court held it has discretion to enlarge time and admit documents filed out of time. The defendants did not demonstrate any prejudice they would suffer. Treating the matter as procedural technicality offending Article 159(2)(d) of the Constitution, the judge exercised discretion in favour of admitting the documents as properly filed.
Whether the application for interim measures pending arbitration was res judicata
Yes. The same injunctive relief over the same premises between the same parties had been heard and determined in ELCLC E295 of 2025, and the plaintiff had abandoned her right to arbitrate by filing the earlier suit
The court found the current claim concerned the same premises as the former suit, in which Justice Mbogo had declined interim injunctive orders. The plaintiff had not invoked the arbitration clause in the first instance; resorting to it only after failing in the earlier suit amounted to forum shopping and abuse of process. Applying section 7 of the Civil Procedure Act and the Supreme Court's statement of the res judicata conditions, the application was barred.
Whether the plaintiff met the threshold for interim protection pending arbitration under section 7 of the Arbitration Act
No. She failed to establish a prima facie case warranting interim measures
Although courts have discretion under section 7 of the Arbitration Act to grant interim measures, and the Safaricom v Ocean View criteria apply, the plaintiff's application was res judicata. Having failed to establish a prima facie case, the court, following Nguruman, declined to consider the other limbs of the injunction test and disallowed the application.
Legal principles established
#- Where a party has filed suit seeking interim orders and abandoned the arbitration route, a subsequent application for interim measures on the same subject matter is res judicata
- Where a party fails to prove a prima facie case, the court need not determine the other limbs of the injunction test
Court orders
#- 1.Further affidavit and written submissions filed out of time by the Plaintiff deemed properly filed and admitted on record
- 2.The Plaintiff's Chamber Summons application dated 30th October 2025 dismissed
- 3.Costs to the Defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 7 of the Arbitration Act (interim measures by court); Article 159(2)(d) of the Constitution invoked on procedural technicality
Relief refused
#Interim measure of protection by way of temporary injunction restraining the Defendants from trespassing, evicting, alienating or interfering with the Plaintiff's occupation of Apartment No. A22, LR No. 1870/V/69, pending arbitration
The application was res judicata, the plaintiff had not established a prima facie case, and she was found to have engaged in forum shopping and abuse of court process
Costs
Costs to the Defendants.
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.
I hence find the instant application res judicata.
I opine that the instant application and the determined application in the previous suit were all seeking orders of interim injunction.
In the foregoing, I find that the Plaintifi has not established a prima facie case to warrant the orders of interim measures sought.
In the circumstances, I find the Plaintifi’s instant Chamber Summons application unmerited and will disallow it.
Costs to the Defendants.
I will allow the further afidavit and written submissions filed by the Plaintifi, out of time, to form part of the Court record and the same to be deemed as properly filed.
Issues in the judgment
#Second defendant's role unclear - Robert Nicholas Darby is described as a director of the 1st Defendant who swore the replying affidavit, but he is listed among the Defendants; the judgment does not expressly name the 2nd Defendant's full description
Case number of the present suit not stated in the judgment extract; only the prior suit ELCLC E295 of 2025 is identified
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi v Skyview Gardens Limited & another (Environment and Land Case E542 of 2025) [2026] KEELC 1995 (KLR)", Case Analysis (2026). Chamber Summons application dated 30th October 2025 (E&L Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1995/eng@2026-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.