Suleiman & 5 others v Kivuva (Civil Suit E030 of 2025) [2026] KEELC 3540 (KLR)
The bottom line
#A Kwale court blocked a landowner from surveying, subdividing or evicting families from occupied but unregistered land until the main case is decided.
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 Notice of Motion application dated 7th April 2025 by the Plaintiffs/Applicants was merited?
- 2.Whether the parties herein were entitled to the reliefs sought
- 3.Who bears the costs of the application dated 7th April 2025?
Key legal issues
#Whether the Applicants established a prima facie case warranting a temporary injunction over an unsurveyed, unregistered parcel of land
Yes. The fact that the land is unsurveyed and unregistered was immaterial at the interlocutory stage; the land exists, is occupied by the Applicants, and a notice summoning the 1st Applicant's spouse to the DCI on charges of forcible detainer established the apprehension of eviction, so a prima facie case was made out.
The court declined to examine the description or root of registration of the parcel at the interlocutory stage, holding ownership is preserved for trial. The land's existence and occupation were undisputed. A copy of a notice compelling attendance at DCI Kwale on charges of forcible detainer, served on the 1st Applicant's spouse, grounded the apprehension of eviction and demolition; the threats were established even if doubt remained as to the respondent's personal involvement.
Whether the Applicants would suffer irreparable injury not adequately compensable by damages
Yes. Photographs annexed to the application showed permanent and semi-permanent structures proving occupation and use, satisfying the second threshold and justifying preservation of the suit property.
Relying on Robert Mugo Wa Karanja v Ecobank and American Cyanamid v Ethicon, the court considered whether damages would be an adequate remedy. Photographs showed several structures and developments, some permanent, proving occupation and use. The court found it imperative to protect the Applicants from loss and preserve the suit property pending hearing and determination of the suit.
Whether the balance of convenience favoured the Applicants
Yes. There is a lower risk of injustice in granting the temporary injunction than in withholding it pending trial.
Applying the definition of balance of convenience in Pius Kipchirchir Kogo v Frank Kimeli Tenai and the 'lower risk of injustice' principle in Amir Suleiman v Amboseli Resort Limited, and noting the purpose of temporary injunctions is preservation of the status quo pending final disposal (Kiyimba Kaggwa v Katende), the court was convinced there was a lower risk in granting the orders than in not granting them.
Who bears the costs of the application
Each party to bear its own costs, notwithstanding the Applicants' success.
Costs are at the court's discretion and normally follow the event under Section 27 of the Civil Procedure Act, but the discretion must be exercised judiciously. Given the circumstances of the case, the court considered it just, fair, reasonable and proper for each party to bear its own costs.
Legal principles established
#- A prima facie case in civil cases is one in which, on the material presented, a tribunal would conclude that a right has apparently been infringed so as to call for an explanation or rebuttal from the opposite party
- Where a notice compelling attendance is served on an occupier's family member, the apprehension of eviction and demolition is established and cannot be wished away, notwithstanding the respondent's denials
- Where structures and occupation are demonstrated on land, the balance of convenience tilts towards the plaintiffs pending trial
Court orders
#- 1.That the Notice of Motion application dated 7th April, 2025 be and is hereby found to be meritorious and hence allowed
- 2.That an order of temporary injunction be and is hereby issued restraining the Defendant/Respondent by his servants, agents, and/or any other person claiming under them from conducting a survey, sub-dividing, evicting, alienating, dispossessing the plaintiff from the suit land unsurveyed unregistered parcel of Land measuring 7.0 Ha or thereabout situate in Ng'ombeni area within Kwale County lying peripheral and/or next to the Ng'ombeni Settlement Scheme or in any other way interfering with the Plaintiffs' quiet possession thereof pending the hearing and determination of the main suit
- 3.That there be a Pre-Trial Conference conducted on 28th September, 2026 in accordance with Order 11 of the Civil Procedure Rules, 2010, and a hearing date on 18th January, 2027 preferably through Physical means
- 4.That each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 40, 47 and 159 of the Constitution of Kenya 2010; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21; Order 40 Rules 1, 2, 3 and 4 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Costs of the application against the Defendant/Respondent
The court opined it would be just, fair, reasonable and proper for each party to bear its own costs despite the Applicants' success
Costs
Each party to bear its own costs
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.
THAT the Notice of Motion application dated 7th April, 2025 be and is hereby found to be meritorious and hence allowed.
THAT an order of temporary injunction be and is hereby issued restraining the Defendant/Respondent by his servants, agents, and/or any other person claiming under them from conducting a survey, sub - dividing, evicting, alienating, dispossessing the plaintiff
THAT each party to bear its own costs.
Thus, the apprehension on eviction and further demolition of their property is founded and has been established by this notice and cannot be wished away by this Court.
Whether the suit property is “Unsurveyed or Unregistered” at this interlocutory moment is premature – a non issue - and/or immaterial as far as I am concerned
From the foregoing, the balance of convenience automatically tilts towards the Plaintiffs/Applicants.
Issues in the judgment
#Internal date contradictions: the Replying Affidavit is dated 28th November 2025 yet served on an application dated 7th April 2025; directions were given on 11th February 2025 before the application was filed; the judgment is dated 5th May 2026 but recounts filing dates later than that; the pre-trial conference date of 28th September 2026 and hearing of 18th January 2027 also appear inconsistent
The case number of the suit is not stated anywhere in the judgment
Inconsistent place name: the affidavit refers to 'Ng'omeni area' while the rest of the judgment uses 'Ng'ombeni area'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Suleiman & 5 others v Kivuva (Civil Suit E030 of 2025) [2026] KEELC 3540 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 7th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3540/eng@2026-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.