Mwadumbo t/a Mwadumbo & Company Advocates & another v Soita t/a Soita & Associates Advocates & another (Enviromental and Land Originating Summons E072 of 2025) [2026] KEELC 3154 (KLR)
The bottom line
#A Kenyan land court protected a home buyer in possession from eviction, saying ongoing occupation and payments raised a real dispute that must go to full trial.
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 Applicant has met the threshold for the grant of the temporary injunctive orders sought
Key legal issues
#Whether the Applicants established a prima facie case with a probability of success
Yes. The existence of an executed sale agreement, the 2nd Applicant's continued possession, and disputes over completion disclose a genuine and arguable dispute satisfying the Mrao threshold
The Court held that at the interlocutory stage it is not required to make definitive findings on contested factual and contractual issues. Its duty is merely to determine whether a right requiring protection has been demonstrated. Noting the undisputed executed sale agreement, the 2nd Applicant's continued occupation since 2021 and the substantial sums remitted towards the purchase price, the Court found the circumstances disclosed a genuine and arguable dispute deserving interrogation at a full hearing, meeting the Mrao definition of a prima facie case.
Whether the Applicants would suffer irreparable harm not compensable by damages
Yes. Eviction or distress before determination would fundamentally alter the substratum of the suit, and the injury may not be adequately compensable by damages
The Court observed that the orders sought preserve the 2nd Applicant's continued possession of premises occupied as her residence for several years and improved through substantial renovations. It reasoned that if eviction or distress issued before the dispute over completion of the sale was determined, the substratum of the suit would be fundamentally altered, and it was persuaded the Applicants faced injury potentially not adequately compensable by damages alone.
Where the balance of convenience lies
Even if in doubt on the first two limbs, the balance of convenience favours preserving the status quo over the immovable property pending determination
The Court applied the principle that in disputes concerning possession and competing claims over immovable property, prudence dictates preservation of the property and maintenance of the existing state of affairs until the parties' rights are conclusively determined on evidence. It concluded the justice of the matter demanded preservation of the suit property pending determination of the substantive dispute.
Legal principles established
#- At the interlocutory stage the court need not resolve contested factual and contractual issues; it need only find a genuine and arguable dispute amounting to a prima facie case
- Where disputes concern possession and competing claims over immovable property, the balance of convenience favours preserving the status quo pending full determination
Court orders
#- 1.A temporary injunction restraining the Respondents, whether by themselves, their servants, agents, employees or any person acting under their authority, from entering into, levying distress, evicting, or in any manner whatsoever interfering with the 2nd Applicant's quiet possession of the premises known as Nairobi/Block 15/323 pending the hearing and determination of this suit
- 2.The costs of the application shall abide the outcome of the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 34 of the Civil Procedure Act, Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules, and Article 159 of the Constitution
Relief refused
#Costs of the application to a party
The Court deferred costs to the outcome of the main suit rather than awarding them to either side
Costs
The costs of the application shall abide the outcome of the main suit.
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.
A temporary injunction be and is hereby issued restraining the Respondents, whether by themselves, their servants, agents, employees or any person acting under their authority, from entering into, levying distress, evicting, or in any manner whatsoever interfering with the 2nd Applicant’s quiet possession of the premises known as Nairobi/Block 15/323 pending the hearing and determination of this suit.
The costs of the application shall abide the outcome of the main suit.
At this interlocutory stage, the Court is not called upon to make definitive findings on the contested factual and contractual issues raised by the parties.
The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained
First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.
Issues in the judgment
#Paragraph 12 states the 2nd Applicant 'also filed written submissions in support of the application dated 31st October 2025 and in opposition to the Respondents' replying affidavits', which appears to duplicate or conflate the Applicants' submissions already recorded in paragraphs 9-11
Nguruman Limited is cited with the citation [2014] eKLR in the submissions but as [2013] KECA 347 (KLR) in the Court's analysis, an internal inconsistency in the judgment's citation of the same case
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwadumbo t/a Mwadumbo & Company Advocates & another v Soita t/a Soita & Associates Advocates & another (Enviromental and Land Originating Summons E072 of 2025) [2026] KEELC 3154 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3154/eng@2026-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.