Abubakar Mohamed Swaleh v Abdulrahman Mohamed Swaleh & Another

challenge that ruling; that unless I stay of execution is granted the respondents are at liberty to proceed with execution for costs arising from the impugned ruling which execution would occasion immediate financial prejudice to the applicant and undermine his ability to prosecute the intended appeal; that following the delivery of the ruling the defendants have commenced acts of harassment and interference directed at the applicants’ tenants on the suit property with threads of eviction demand for rent and disturbance of quiet possession with the apparent intention of forcing them to vacate or cease recognizing the applicant's authority. The plaintiff is apprehensive that the acts of the defendants will all turn the status quo on the ground and undermine his longstanding position and management of the suit property hence rendering pay intended a bill nugatory; that the applicant may suffer substantial and irreparable loss that cannot be adequately remedied by damages. 2. The third and fourth respondents filed their replying affidavit dated 19 th March 2026 sworn by the fourth defendants on their behalf. Their response to the application is that the proceedings were brought to a final end by the dismissal of the suit on 22 nd May 2025 and the plaintiff failed to demonstrate sufficient cause that could enable the court to exercise its discretion to reinstate it; that the ruling does not result in an order that can be stayed; that the applicant has not established a prima facie case with probability of success to warrant a grant of temporary injunctive orders; that relief for temporary injunction presupposes that are substantive suit exists but in the present case the suit remains dismissed; that the court is being invited to grant interim beliefs in a legal vacuum and if it is so it will be acting without jurisdiction; that in any event the applicant has failed to demonstrate a prima facie case (read appeal) with probability of success and no risk of irreparable injury that cannot be compensated adequately in damages has been demonstrated, and that the allegations of harm loss MLDELCCNOE010/26-RLG/DF-20.01.26/FH-25.03.26/LH-14.05.26/DR-24.09.26F. Page 2 of 6

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or injury advanced by the applicant are speculative; that the applicant has approached the court with unclean hands and is undeserving of any equitable relief, and the application is an abuse of the court process. The respondents also aver that the applicant has also filed Malindi ELC Case Number E005 Of 2026 involving the same parties and touching on the same subject matter despite having the full knowledge or the pendency of the instant suit and the application. I have checked the CTS and found that case Malindi ELC Case Number E005 Of 2026 was withdrawn on 3rd February 2026 and that on 19th May 2026 the court ordered each party to bear their own costs. There is therefore no other suit pending before this court. SUBMISSIONS 3. The applicant filed submissions dated 17th March 2026 which I have considered. I have perused the court record and I have found no submissions filed on behalf of the respondents as at the time of preparation of this ruling. ANALYSIS AND DETERMINATION 4. The issue that arises in the present application is whether an injunctive order should issue against the respondents as prayed by the plaintiff. 5. This court has noted that a notice of appeal has been filed by the applicant. However, the principles of injunctions are that the applicant must demonstrate that he has a prima facie case and that he stands to suffer irreparable loss that cannot be compensated for by way of damages. 6. In the present case the applicant's suit was struck out on the 22 nd May 2025. In striking out the suit this court stated as follows: "The suit was lodged in January 2024 and very little progress has been made going to the plaintiff's conduct this suit is hereby MLDELCCNOE010/26-RLG/DF-20.01.26/FH-25.03.26/LH-14.05.26/DR-24.09.26F. Page 3 of 6

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struck out with costs the 3rd and 4th defendants only for reasons of non-compliance with the court's orders of 7th April 2025." 7. 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. that order provides as follows: 1. Cases in which temporary injunction may be granted [Order 40, rule 1] Where in any suit it is proved by affidavit or otherwise— (a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b)that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders. 8. Order 40 Rule 2 provides as follows: 2. Injunction to restrain breach of contract or other injury [Order 40, rule 2] (1)In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant MLDELCCNOE010/26-RLG/DF-20.01.26/FH-25.03.26/LH-14.05.26/DR-24.09.26F. Page 4 of 6

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from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right. (2) The court may by order grant such injunction on such terms as to an inquiry as to damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court deems fit. 9. It is clear Order 40 Rule 3 does not apply to the application. However, the rules cited as well as the sections of the Civil Procedure Act and the provisions of the Constitution do not come to the aid of the applicant without the existence of a suit before this court. 10. In the principal Act suit is defined as follows: "suit" means all civil proceedings commenced in any manner prescribed. 11. An appeal is a civil proceeding too. However, an injunctive order ought to be sought in circumstances of an appeal where an appeal is pending before the court applied to. There is no appeal before this court, it being the case that it is the decision of this court that is intended to be appealed to the Court of Appeal. Therefore, an injunctive order cannot therefore issue on the basis that the applicant has no appeal pending before it. 12. The upshot of the above discourse is that the application dated 20th January 2026 lacks merit and it is hereby dismissed with costs. Dated, signed and delivered at Malindi on this 24 th September 2026. MLDELCCNOE010/26-RLG/DF-20.01.26/FH-25.03.26/LH-14.05.26/DR-24.09.26F. Page 5 of 6

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MWANGI NJOROGE JUDGE, ELC MALINDI. MLDELCCNOE010/26-RLG/DF-20.01.26/FH-25.03.26/LH-14.05.26/DR-24.09.26F. Page 6 of 6

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