https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5085

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELCLC NO. E511 OF 2025** **BRICKLANE HOMES LIMITED...............................PLAINTIFF/DEFENDANT** **VERSUS** **JUDITH NYABOKE……………….................…………..DEFENDANT/APPLICANT** **AND** **NCBA BANK KENYA PLC…………..................………………INTERESTED PARTY** **RULING** 1. Before this court for determination is the notice of motion dated 2nd February, 2026 filed by the defendant/applicant and it is expressed to be brought under **Article 159** of the **Constitution**, **Sections 1A, 1B** and **3A** of the **Civil Procedure Act** and **Order 2 rule 15** and **Order 51 rule 1** of the **Civil Procedure Rules** seeking the following orders:- 2. ***Spent.*** 3. ***Spent.*** 4. ***That pending the hearing and determination of the counterclaim between the parties, this honourable court be pleased to issue an interim order of injunction/inhibition restraining the respondents from transferring, subdividing, letting, disposing of or in any way dealing with penthouse no. C7 on LR no. 330/250 at Sandalwood Clyde Gardens situated at Lavington within Nairobi County.*** 5. ***That the costs of this application be awarded to the applicant.*** 6. The application is premised on the grounds on its face. It is further supported by the affidavit of the defendant/applicant sworn on even date. She deposed that she filed a suit before the high court in HCCOMM no. E716 of 2021 challenging the sale by auction of the suit property known as LR no. 330/250 Penthouse no. 7 situate in Sandalwood Clyde Gardens. However, she did not obtain injunctive orders, hence she filed an appeal at the court of appeal in civil application no. E308 of 2021 where she obtained orders of status quo pending the hearing and determination of the intended appeal. 7. The defendant/applicant deposed that she rented out the suit property to Grace Chepkoech Chesiyna and Eng. Stephen Melly through a tenancy agreement which was executed on her behalf by her father Walter Nyamoko Onchwari. The said tenants paid rent through cheque sometime in April 2023 which was dishonoured. Thereafter, they began having issues with rent payment and as at April 2025, the arrears were at Kshs.4,115,000/-. The defendant/applicant deposed that she demanded rent and instructed auctioneers to collect the same, and in the process, she learnt that Grace Chepkoech Chesiyna had instituted MCCC No. E1204 of 2024 seeking to stop the levying of distress. A ruling was delivered by the subordinate court on the same, and in fact the matter is still alive at the magistrates’ court. 8. The defendant/applicant deposed that the said plaintiff/respondent and Grace Chesiyna have used different law firms to institute new cases and their conduct are deliberate and aimed at interfering with the fair trial of the original suit. 9. The plaintiff/respondent filed grounds of opposition dated 10th March, 2025 challenging the application on the following grounds:- 10. ***That the application is an abuse of court by virtue of the ruling of the court of appeal dated 20th December, 2021 in civil application no. E308 of 2021 granting conditional status quo orders on the suit property.*** 11. ***That the annexures are fatally defective, inadmissible in court and fall short of the mandatory requirements of Rule 9 of the Oaths and Statutory Delcaration Rules.*** 12. ***That the application is fatally defective as it seeks orders against a 2nd and 4th respondent who are not parties to the suit.*** 13. ***That this court lacks jurisdiction to hear and determine this application in the existence of other existing suits over the same subject matter.*** 14. The application was canvassed through written submissions. The defendant/applicant filed written submissions dated 5th April, 2026. The plaintiff/respondent filed written submissions dated 10th March, 2026. I have considered the application, the grounds of opposition and the written submissions filed. The issue for determination is *whether the defendant/ applicant has established a prima facie case to warrant the orders sought.* 15. Before I delve into the merits or otherwise of the application, there is a fundamental error that ought to be addressed. This suit was instituted by the plaintiff (bricklane homes limited) against the defendant/ applicant (Judith Nyaboke) and the interested party (NCBA Bank Kenya PLC). Without an application for joinder of parties and an application for leave to amend the pleadings, it is unprocedural and unknown in law for the defendant/ applicant to file an application citing parties/individuals unknown to the instant proceedings. By introducing Grace Chepkoech Chesiyna and the registrar of governments lands without following due process, the defendant/applicant fell into error as evidently so, what the defendant/applicant is attempting is to seek orders against parties not suited in this matter. 16. Secondly, the drafting of the pleadings is wanting. With all due respect, there is no need to rearrange the order of the parties in this case. It simply creates more confusion and obstructs the flow of the pleadings. It was necessary to point this out for the reason that the court has had difficulty trying to understand what both parties were claiming against the other. Having said this, the court will only recognize and retain the parties in the suit as originally filed. 17. The defendant/applicant in this case contends that the suit pertains to an auction exercise of statutory power of sale by the interested party which is pending before the high court commercial division. Further, THAT there exists orders from the court of appeal maintaining status quo as to ownership and possession of the suit property. However, it has come to her attention that while the orders were still in force, the plaintiff/ respondent colluded and transferred the property to the plaintiff/ applicant seeking to sanitize the said ownership. 18. This court is cognizant of the proceedings before the court of appeal and the high court commercial division. The jurisdiction of this court has been invoked by the alleged transfer of the suit property to the plaintiff/respondent whilst there is a pending matter before the court of appeal and the high court. The defendant/applicant seeks the intervention of this court to prevent any dealings on the suit property including its title. 19. **Order 40 Rule 1** of the **Civil Procedure Rules** provides for cases in which temporary injunctions may be granted and states as follows:- ***“Where in any suit it is proved by affidavit or otherwise—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……..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.”*** 1. Further, the conditions set for consideration in granting an injunction are now well settled in the case of **Giella vs Cassman Brown & Company Limited (1973) E.A 358,** where the court expressed itself on the conditions that a party must satisfy for the court to grant an interlocutory injunction: ***“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.”*** 1. On whether the plaintiff/applicant has established a prima facie case with a probability of success, a prima facie case was explained to be one described as follows in the case of **Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others [2015] eKLR**, in which the court of Appeal detailed what probability of success means when it stated that:- ***“In HABIB BANK AG ZURICH V. EUGENE MARION YAKUB, CA NO. 43 OF 1982 this court considered the role of the court when determining whether or not a prima facie case has been made out. The court expressed itself thus:*** ***“Probability of success means the court is only to gauge the strength of the Plaintiff's case and not to adjudge the main suit at the stage since proof is only required at the hearing stage.”*** 1. The court further stated: - ***“A prima facie case with a probability of success does not, in my view, means a case, which must eventually succeed.”*** 1. From the annexures, the certificate of postal search indicates that as at 23rd September 2025, the plaintiff/respondent is the registered owner of the suit property. The suit property was registered in the name of the plaintiff/ respondent despite the orders issued by the court of appeal dated 20th December, 2021 being in place. It is not difficult to find that the defendant/applicant has established a prima facie case. 2. On whether there is damage that cannot be compensated by an award of damages, the defendant/applicant submitted that the transfer of the suit property is a violation of her right to own property, and further subsequent dealings on the title following the transfer which she argued cannot be compensated by award of damages. On this, I am satisfied that there is need to protect the suit property from further dealings as damages may not be an adequate remedy for compensation incase the defendant/applicant succeeds. 3. The court is not in doubt and thus the convenience lies in favour of the defendant/applicant. I find merit in the notice of motion dated 2nd February 2026, and issue the following orders:- 4. ***Pending the hearing and determination of the counterclaim between the parties, a temporary order of injunction is hereby issued restraining the plaintiff/respondent from transferring, subdividing, letting, disposing of or in any way dealing with penthouse no. C7 on LR no. 330/250 at Sandalwood Clyde Gardens situated in Lavington.*** 5. ***Costs to be in the cause.*** It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY ON** **THIS 4TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **04/08/2026.** ***In the presence of:*** *Ms. Benson Agunga - Court assistant* *Mr. Kevin Mwalo for the Defendant/Applicant* *Ms. Mathia for the 1st Defendant/Respondent*