https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/789

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCCELC NO. E063 OF 2026** **KIBIBI KOMBO OMARI...........................................................PLAINTIFF/APPLICANT** **VERSUS** **ALI MWENO TUKU....................................................1ST DEFENDANT/RESPONDENT** **DIANA ATIENO........................................................2ND DEFENDANT/RESPONDENT** **HAMISI MUSTAFA....................................................3RD DEFENDANT/RESPONDENT** **MUSTAFA MOHAMED OMAR.................................4TH DEFENDANT/RESPONDENT** **RULING** **Introduction** 1. Before this Court is the Plaintiff/Applicant’s Notice of Motion dated 8th April 2026, brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 and Order 51 Rule 1 of the Civil Procedure Rules, Article 159 of the Constitution and other enabling provisions of the law. 2. The application principally concerns an unsurveyed portion of land measuring approximately 35 feet by 75 feet, said to have been hived from property known as 312/I/MN, situated at Bamburi, Mombasa County. 3. The Plaintiff seeks, inter alia, an injunction restraining the 2nd and 4th Defendants from constructing on the disputed parcel pending determination of the suit. She further seeks orders compelling the 3rd Defendant to complete transfer of the property to her, compelling the 1st Defendant to refund the 2nd and 4th Defendants monies allegedly paid by them, and requiring the 2nd and 4th Defendants to vacate and surrender possession of the property to her. 4. The application precipitated a Preliminary Objection dated 16th April 2026 by the 2nd Defendant. The central contention in that objection is that the Plaintiff commenced these proceedings by Notice of Motion without filing a Plaint or other substantive originating pleading and that the application is consequently incapable of sustaining relief under Order 40. 5. The Court has considered the Notice of Motion, Supporting Affidavit, Replying Affidavits, the Preliminary Objection, the parties’ respective written submissions, the agreements and photographs placed before the Court, and the authorities relied upon. The Plaintiff's case 1. The Plaintiff's case is founded upon an Agreement for Sale dated 16th December 2024, entered into between herself and the 1st Defendant, Ali Mweno Tuku. Under that agreement, the 1st Defendant agreed to sell to the Plaintiff an unsurveyed portion measuring approximately 35 feet by 75 feet, hived from property known as 312/I/MN, for a purchase price of KShs. 900,000. 2. The agreement records payment of KShs. 600,000 upon execution, leaving a balance of KShs. 300,000, which was to be paid within three months. The Plaintiff maintains that she subsequently paid the KShs. 300,000 balance, thereby completing the purchase price, and thereafter took possession. 3. She avers that upon subsequently visiting the property, she discovered construction taking place there and learnt that the 1st Defendant had purportedly resold the property to the 2nd and 4th Defendants. The Plaintiff further alleges that the 3rd Defendant received KShs. 15,000 as a transfer fee. She therefore maintains that unless the Court intervenes, she risks losing both the property and the money paid towards its acquisition. The 2nd Defendant's response 1. The 2nd Defendant, Diana Atieno, opposes the application. She maintains that she is herself a purchaser from the 1st Defendant and that the property purchased by her is not necessarily the same parcel claimed by the Plaintiff. 2. Diana produced an Agreement for Sale dated 22nd October 2025 between herself and the 1st Defendant. It relates to an unsurveyed and irregularly shaped plot measuring approximately 35 feet by 40 feet, described as being situated at Mbuyu Kiwete Village. 3. The consideration under Diana's agreement is KShs. 300,000. The agreement records that neither party owed the other any money and that vacant possession was to be granted upon receipt of the full purchase price. 4. Diana maintains that she conducted due diligence and did not encounter any record of the Plaintiff's alleged interest. She describes herself as an innocent purchaser for value. 5. Photographic evidence placed before the Court shows a substantially developed coral/stone structure which Diana says is her construction. 6. Diana's position is that the Plaintiff has failed to establish wrongdoing on her part. In her written submissions she contends that any grievance arising from the first transaction lies principally against the 1st Defendant. The 1st Defendant's response 1. The Replying Affidavit of Ali Mweno Tuku is particularly material because he does not dispute the existence of the original agreement with the Plaintiff. He admits that he entered into an agreement with Kibibi for 35 feet by 75 feet portion of Plot No. 312/I/MN at a consideration of KShs. 900,000. He also admits receiving the initial KShs. 600,000. His account, however, materially differs from the Plaintiff's account regarding performance of the agreement. He says that out of the initial KShs. 600,000, he refunded KShs. 100,000 to Kibibi and paid another KShs. 100,000 as commission. 2. He further admits receiving another KShs. 200,000 through M-Pesa, but maintains that the net amount received and retained towards the transaction was therefore only KShs. 600,000, rather than KShs. 900,000. He contends that the Plaintiff failed to pay the outstanding balance and thereby breached the agreement. 3. Significantly, the 1st Defendant admits that he thereafter disposed of the original plot to a third party. His explanation is that following the Plaintiff's alleged breach, the parties mutually agreed that the Plaintiff would instead receive an alternative plot measuring approximately 40 feet by 40 feet in settlement of her interest in the original transaction. 4. According to him, Kibibi accepted that arrangement, took vacant possession and commenced substantial developments on the alternative parcel comprising a one-bedroom house and two bedsitter units. 5. Photographs were annexed showing substantial masonry construction. The photographs establish the existence of construction at the photographed location, but they do not by themselves resolve the identity, ownership or dimensions of the parcel. 6. The 1st Defendant further alleges that despite retaining the alternative property, the Plaintiff is demanding a refund of KShs. 400,000. He therefore invokes, in substance, estoppel and the equitable requirement of clean hands and argues that Kibibi cannot retain the alternative parcel while simultaneously reclaiming the original parcel or obtaining a refund. Preliminary Objection 1. Before addressing the merits of the injunction, the Court must determine the Preliminary Objection because it challenges the competence of the proceedings themselves. 2. The 2nd Defendant contends that the Notice of Motion is not anchored upon a Plaint, Originating Summons, Petition or any other recognised originating process. 3. She argues that Order 40 contemplates interlocutory relief “in any suit”, and consequently the Court cannot grant an interlocutory injunction where no suit has been instituted. 4. Reliance was placed upon Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, for the foundational principle that jurisdiction must be determined once questioned. The Court of Appeal held that a jurisdictional objection ought to be addressed promptly on the material available to the Court. 5. More directly, the 2nd Defendant relied upon Simon Njoroge Thuo v Joseph Mwangi Waweru [2017] eKLR. In that matter proceedings seeking an injunction under Order 40 had been commenced by Notice of Motion as a miscellaneous application, without a Plaint. The ELC held the proceedings incompetent and struck them out. Plaintiff's response to the Preliminary Objection 1. The Plaintiff opposes the Preliminary Objection and relies principally upon Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Oraro v Mbaja, and Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others. 2. Her argument is that determining whether a Plaint was absent, filed concurrently with the application, or undergoing processing through the e-filing system or registry requires investigation of facts and therefore takes the objection outside the province of a pure preliminary objection. 3. The Plaintiff further invokes sections 1A and 1B of the Civil Procedure Act, Order 51 Rule 10 and Article 159(2)(d) of the Constitution. She argues that an urgent protective application ought not to be defeated merely because of procedural timing or form. **Issues for determination** 1. From the material before the Court, the following issues arise: 2. Whether the Preliminary Objection dated 16th April 2026 is properly taken and whether the Notice of Motion is competently before the Court; 3. If the application is competent, whether the Plaintiff has established the threshold for a temporary prohibitory injunction; 4. Whether the Plaintiff has established the higher threshold for the mandatory relief sought; and 5. Who should bear the costs. Whether the Preliminary Objection is merited 1. A preliminary objection must raise a pure point of law which, if successful, may dispose of the proceedings without requiring the Court to determine contested evidential facts. 2. I have carefully considered the Plaintiff's argument that determining whether a Plaint exists necessarily requires factual investigation. 3. There is an important distinction between a disputed evidentiary fact forming part of the cause of action and the Court examining its own record to ascertain the process by which proceedings before it were instituted. 4. Whether a Plaint has been filed is ordinarily ascertainable from the Court's own record. It does not require oral evidence, cross-examination or resolution of competing factual accounts between the parties. 5. More importantly, despite specifically confronting an objection founded upon the absence of a Plaint, the Plaintiff has not identified the Plaint said to anchor the application, its date of filing, or its filing reference. Her submissions instead state that it may have been filed concurrently or may have been undergoing processing through the e-filing system or registry. 6. A pleading that might have been undergoing processing is not the same thing as demonstrating that a suit had in fact been instituted when the Court was moved for interlocutory relief. 7. The argument based upon Oraro v Mbaja is consequently distinguishable. In Oraro, the objection itself depended upon disputed evidentiary allegations concerning professional representation. Here, the issue is whether there exists an originating process capable of constituting a suit. 8. The Civil Procedure Act defines a suit as civil proceedings commenced in the manner prescribed. Under Order 3 Rule 1, every suit is instituted by presenting a Plaint to the Court or in such other manner as may be prescribed. 9. A Notice of Motion is ordinarily an application within proceedings; it is not, absent an express statutory or procedural provision permitting it, an originating process by which an ordinary civil land dispute of this nature is instituted. 10. Order 40 Rule 1 itself repeatedly speaks of property “in dispute in a suit” and permits protective relief until disposal of “the suit”. The interlocutory jurisdiction therefore presupposes underlying proceedings. 11. The decision in Simon Njoroge Thuo v Joseph Mwangi Waweru is particularly persuasive because the procedural problem there was substantially similar. The applicant sought Order 40 relief by Notice of Motion without a Plaint. The Court held that the application could not independently constitute a suit and that there was therefore no proceeding upon which the interlocutory jurisdiction could operate. 12. Article 159(2)(d) is important, but it does not convert an application into an originating pleading where the Rules require substantive proceedings. There is a distinction between curing an irregularity within an existing suit and supplying the very proceeding upon which interlocutory jurisdiction depends. 13. I therefore find that the objection raises a proper question of law and that, on the material placed before me, the Notice of Motion dated 8th April 2026 has not been shown to be anchored upon a duly instituted substantive suit. Strictly speaking, that conclusion would dispose of the matter. 14. Nevertheless, because the parties extensively addressed the merits of the application and because the substantive relief sought is significant, I consider it appropriate to briefly address the position that would obtain even if I were wrong on the preliminary point. Whether a prima facie case has been established 1. The principles applicable to a temporary injunction are settled. The applicant must establish a prima facie case; demonstrate an injury which would not adequately be compensated by damages; and, where the Court remains in doubt, establish that the balance of convenience favours the injunction. 2. There is undoubtedly a serious dispute deserving adjudication. Indeed, some material facts are admitted. 3. The 1st Defendant admits entering into the 16th December 2024 agreement with Kibibi for the 35 × 75 feet parcel at KShs. 900,000. He admits receiving the initial KShs. 600,000. Most significantly, he admits that he subsequently disposed of the original parcel to a third party. 4. The real controversy is why he did so and what subsequently became of Kibibi's rights. Kibibi says she paid the purchase price in full and was therefore entitled to the original parcel. Ali says she did not complete payment, the original transaction came to an end, and she subsequently accepted an alternative 40 × 40 feet parcel in full settlement. 5. Diana, meanwhile, produces her own later agreement of 22nd October 2025 for a 35 × 40 feet parcel at a consideration of KShs. 300,000. There is no survey material before the Court conclusively establishing whether Diana's 35 × 40 feet parcel is wholly or partly comprised within Kibibi's earlier 35 × 75 feet parcel. 6. Neither is there documentary material conclusively establishing at this interlocutory stage the alleged substitution of Kibibi's original parcel with the alternative 40 × 40 feet parcel. 7. Equally, the evidence presently before the Court does not permit a final finding on whether Kibibi paid KShs. 900,000, whether KShs. 100,000 was refunded, whether KShs. 100,000 was properly treated as commission, or whether the parties entered into a binding settlement replacing the original transaction. Those are matters requiring evidence at a substantive hearing. The Court must be particularly careful not to convert an interlocutory application into a trial of the parties' contractual and proprietary rights. Irreparable injury and balance of convenience 1. The 2nd Defendant argues that the Plaintiff's claim is essentially financial because the original transaction had an agreed value of KShs. 900,000, and that any breach can therefore be compensated through refund or damages. 2. I would not accept, as an absolute proposition, that every dispute concerning land automatically becomes compensable merely because the land was acquired for a stated purchase price. 3. However, the particular circumstances here are unusual. The 1st Defendant alleges that the Plaintiff accepted substitute land and substantially developed it. The Plaintiff seeks to recover the original parcel, while the 2nd Defendant says she separately acquired and developed the portion in her possession. 4. The balance of convenience therefore does not favour making orders at this stage which would dispossess one party and effectively install another before the underlying questions of payment, substitution, identity of the respective parcels and validity of the competing transactions are tried. 5. If preservation were the only question before the Court in a properly constituted suit, an appropriately framed status quo order might have been capable of consideration so that neither side altered the character or ownership of the disputed property pending trial. That, however, is materially different from granting the mandatory orders presently sought. Mandatory relief 1. Several prayers in the application are plainly mandatory and substantially final in effect. The Plaintiff seeks orders that would compel: transfer of the land to her; refund of money by the 1st Defendant to the subsequent purchasers; surrender of possession; and vacation of the property by the 2nd and 4th Defendants. If granted, those orders would substantially resolve the very controversy that ought to be determined at trial. 2. The threshold for an interlocutory mandatory injunction is significantly higher than that applicable to an ordinary prohibitory injunction. 3. In Kenya Breweries Ltd & Another v Washington O. Okeyo [2002] eKLR, the Court of Appeal held that mandatory relief at the interlocutory stage is generally reserved for special circumstances and clear cases, including situations involving a simple act readily capable of remedy or an attempt by a defendant to steal a march on the plaintiff. 4. The rationale for that higher standard is readily apparent here. A mandatory injunction may effectively determine possession and proprietary rights before witnesses are heard. 5. The present case is far from clear. The Court would first have to determine: whether Kibibi completed the KShs. 900,000 purchase price; whether any part of her payments was refunded; the legal basis of the alleged KShs. 100,000 commission; whether the original agreement was validly terminated or rescinded; whether Kibibi accepted a 40 × 40 feet alternative parcel; whether that arrangement constituted full and final settlement; whether Kibibi developed and remains in possession of that alternative parcel; whether Diana's 35 × 40 feet parcel overlaps with Kibibi's original 35 × 75 feet parcel; what interest, if any, the 3rd Defendant was capable of transferring; the significance of the alleged KShs. 15,000 transfer fee; and the legal status of the subsequent purchasers. 6. These are substantial questions of fact and law. They cannot responsibly be finally determined on affidavit evidence at the interlocutory stage. 7. I consequently find that even assuming the application were procedurally competent, the mandatory orders sought would not meet the threshold laid down in Kenya Breweries Ltd v Washington Okeyo. The case is neither sufficiently clear nor appropriate for final resolution through interlocutory mandatory orders. **Disposal** 1. In the final analysis, the Court finds that the Preliminary Objection succeeds. 2. The Plaintiff moved the Court by Notice of Motion dated 8th April 2026 seeking interlocutory relief under Order 40 without demonstrating the existence of a Plaint or other recognised originating process constituting a substantive suit. 3. A Notice of Motion cannot, in the circumstances of this dispute, simultaneously constitute the substantive suit and the interlocutory application within that suit. 4. The absence of an originating pleading is not merely a technical defect in the form of an otherwise existing suit. It goes to the juridical foundation upon which the interlocutory application is intended to stand. 5. I am therefore persuaded by the reasoning in Simon Njoroge Thuo v Joseph Mwangi Waweru [2017] eKLR that the application cannot be sustained in its present form. 6. For completeness, even had the Preliminary Objection failed, I would have declined the mandatory prayers sought because the competing transactions, disputed payments, alleged substituted parcel and contested possession present substantial factual controversies requiring a full hearing. 7. The Court should, however, be careful about describing the determination as extinguishing the Plaintiff's underlying substantive rights. Nothing in this ruling determines whether Kibibi ultimately has an enforceable contractual or proprietary claim against any of the Defendants. Those rights have not been tried on their merits. 8. Accordingly, I make the following orders: 9. The 2nd Defendant's Preliminary Objection dated 16th April 2026 is hereby upheld. 10. The Plaintiff/Applicant's Notice of Motion dated 8th April 2026 is hereby struck out for want of a substantive suit upon which it can be anchored. 11. For avoidance of doubt, the Court has made no final determination on the validity or enforceability of the Agreement for Sale dated 16th December 2024, the alleged payment of the full purchase price, the alleged alternative 40 × 40 feet parcel, the subsequent transaction involving the 2nd Defendant, or the parties' respective proprietary and contractual rights. 12. The striking out shall therefore not bar the Plaintiff from pursuing such claim as may be available to her through properly instituted proceedings, subject to the applicable law. 13. Considering that the dispute emanates from an admitted transaction between the Plaintiff and the 1st Defendant and that the substantive rights of the parties remain unresolved, each party shall bear their own costs of the Preliminary Objection and the Notice of Motion. It is so ordered. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**