Abubakar Mohamed Swaleh v Abdulrahman Mohamed Swaleh & Another
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an injunctive order should issue against the respondents as prayed by the plaintiff
Key legal issues
#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
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.
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.
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.The application dated 20th January 2026 is dismissed with costs to the 3rd and 4th defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the ELC Act; application brought under Order 40 of the Civil Procedure Rules
Relief refused
#Temporary injunction restraining defendants from interfering with land parcel Lamu Block 1/310
No suit is pending before the court; injunctive orders under Order 40 CPR can only issue during the pendency of a suit, and no appeal is pending before this court
Costs
Application dismissed with costs (to the 3rd and 4th 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.
It is thus the case that there is no suit before me; under Order 40 CPR injunctive orders can only be issued during the pendency of a suit in order to preserve the subject matter.
The upshot of the above discourse is that the application dated 20th January 2026 lacks merit and it is hereby dismissed with costs.
Issues in the judgment
#Judgment alternately describes the 22nd May 2025 order as a dismissal and a striking out
Defendants are referred to as 'third and fourth respondents' without any first or second respondents being identified
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.