Gogo v Atancha (Land Case E460 of 2024) [2026] KEELC 4135 (KLR) (6 July 2026) (Ruling)

Gogo v Atancha (Land Case E460 of 2024) [2026] KEELC 4135 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEELC 4135 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E460 of 2024 CA Ochieng, J July 6, 2026 Between Dorothy Anyango Gogo Plaintiff and Bernard Tonny Atancha Defendant Ruling 1.What is before the Court for determination is the Plaintiff’s Notice of Motion application dated 5th November 2024 in which she seeks the following Orders:a.Spent.b.That this Honourable Court be pleased to jointly appoint an independent valuer to assess the construction and improvements done on Plot No. K5 of Nairobі Block 136/Drumville pending the hearing and determination of this suit.c.That this Honourable Court be pleased to grant restraining orders to the registered owner of Plot No. K5 of Nairobi Block 136/Drumville who is in cahoots with Mr. Bernard Tony Atancha, the respondent herein, who have conspired to defraud the plaintiff/applicant pending the hearing and determination of the suit.d.That this Honourable Court be pleased to issue orders restraining the Respondent from evicting or interfering with the Plaintiff's peaceful possession and occupation of the property known as Plot No. K5 of Nairobi Block 136/Drumville pending reference of the dispute herein to arbitration.e.That this Honourable Court be pleased to refer the dispute herein to Arbitration by an Arbitrator Appointed by the Chairperson of the Chartered Institute of Arbitrators;f.That pending the hearing and determination of the intended arbitral proceedings, this Honourable Court be pleased to issue orders restraining the Respondent from evicting or interfering with the Plaintiff's peaceful possession and occupation of the property known as PLOT NO. K5 of Nairobi Block 136/Drumville pending the arbitrator's award.g.That in the alternative to prayer 4 above, pending the hearing and determination of the suit filed herewith, this Honourable Court be pleased to issue orders restraining the Respondent from evicting or interfering with the Plaintiff's peaceful possession and occupation of the property known as Plot No. K5 of Nairobi Block 136/Drumville pending the arbitrator's award.h.That this Honourable Court be pleased to make any further order as it deems fit and just in the circumstances.i.That the costs of this application be provided for. 2.The application is premised on grounds on its face and on the Plaintiff’s supporting affidavit. She avers that on 16th November, 2023 she entered into an agreement for sale of Plot No. K5 of Nairobi Block 136/Drumville with the Defendant, who introduced himself as the registered owner of the said property, with legal capacity to enter into an agreement to dispose of it. Further, that being an Advocate of the High Court of Kenya, the Defendant offered to act for both parties in the transaction. 3.She states that it was a term of the sale agreement that she was to pay a deposit of Kshs.500,000/= upon execution and the balance of Kshs.900,000/= within six months and thereafter registration of the property was to be effected in her name. She claims that the Defendant was to deliver completion documents to her on or before the completion date which was six (6) months from the date of executing the agreement but he failed to transfer the suit property to her name to enable her make the necessary payment in completion of her obligations to him. 4.She explains that the sale agreement also provided that in the event of failure to complete from either party, the other party would issue a twenty-one (21) days’ notice in writing informing the offending party to complete, failure to which the aggrieved party would exercise their right to rescind the agreement. 5.She states that on 24th May, 2024, she made a further payment of Kshs.80,000/= to the Defendant’s KCB bank account as part payment of the purchase price. Further, that noting that the Defendant is an Advocate of the High Court of Kenya, she had placed reliance on his word thus chose to invest substantially on the property, by constructing classrooms and other facilities. She further explains that her request to the Defendant to transfer the suit property to her was met with threatening text messages and phone calls from him and unknown persons, who told her to vacate the suit property, which threats she reported to the police. 6.She further claims that on 5th June, 2024, the Defendant issued her with a notice to complete and also notified her that he had increased the purchase price. Subsequently, her advocates responded raising issues which included the Defendant’s capacity in the transaction, and on the same date, the Defendant’s Advocates notified her of the termination of the contract for sale of the suit property, and issued a twenty-one (21) days’ vacation notice. Further, they informed her that reimbursement of the purchase price would be paid after vacation from the suit property. 7.She confirms that she instructed her Advocates to do a correspondence declaring a dispute by invoking Clause 13 of the demised Sale Agreement which contemplates that disputes arising from the impugned contract would be referred to arbitration. She also sought assurance of no adverse action towards her pending the Arbitration Award but the Defendant has failed to respond. She reiterates that unless this Court intervenes, the Defendant will illegally evict her and interfere with her peaceful possession of the suit property. Response 8.The Defendant filed a replying affidavit in opposition. He admits to entering into a sale agreement with the Plaintiff for the sale of the suit property at an agreed consideration of Kshs.1,400,000/=. He also acknowledges that the Plaintiff paid a deposit of Kshs.500,000/=, and that the balance of Kshs.900,000/=, was payable within six months thereafter, upon which registration of the property in the Plaintiff's name was to be effected. 9.He explains that the suit property is society land, currently registered in the name of the previous owner, one Isaac Mwangi Mbuthia, under Certificate of Ownership No. 527, who sold and transferred his interest to him, but it has not been formally transferred into his name, which fact the Plaintiff was fully aware of. 10.He contends that it was an understanding between the parties that the Plaintiff would attend the society board for purposes of effecting transfer of the suit property upon completion but unknown to him, she took possession shortly after paying the deposit, despite there being no legal basis for such possession, and thereafter unlawfully established and commenced operating a school known as Hunny Kids Education Centre from which she continues to derive commercial benefits without completing payment nor paying rent thereby unjustly enriching herself. 11.He avers that he requested and made arrangements for the Plaintiff to attend the society board so as to execute the transfer in accordance with the established procedure but she refused to attend the society board, and instead keeps on insisting on being issued with a title deed, which is practically impossible within the framework of society land. He also confirms that on 5th June, 2024, he issued the Plaintiff with a Notice to Complete, which she ignored in totality, and instead questioned his capacity to sell the property, which was an afterthought, as she did not dispute his beneficial ownership prior to taking possession. 12.He insists that the Plaintiff has failed to pay the balance of the purchase price of Kshs.900,000/=, thereby fundamentally breaching the sale agreement and contends that a party who is in fundamental breach of contract cannot seek equitable relief, while still enjoying benefits arising from the same contract. 13.On a without prejudice basis, he claims that he is ready to refund to the Plaintiff, the deposit of Kshs.500,000/=, which he proposes is to be held in an escrow account pending the Plaintiff's delivery of vacant possession of the suit property and assessment and settlement of mesne profits, for the duration of her use of the property. 14.The application was canvassed by way of written submissions. Submissions 15.The Plaintiff submits that nothing precludes her from seeking interlocutory relief where there exists an arbitration agreement, and that she has met the threshold for grant of injunctions as established in the case of Giella vs Cassman Brown and Company Limited (1973) EA 358. She submits that she has established a prima facie case and points out that she has a valid sale agreement with the Defendant, whose terms he breached by failing to handover the completion documents. Further, that the Defendant also increased the purchase price of the suit property in breach of the impugned sale agreement. 16.She also submits that she has invested substantially in the suitproperty land and if the Defendant is allowed to evict her, she will suffer irreparable loss and damage. She points out that she has paid a deposit of over 40% of the purchase price for the suit property. Further, that she has invested millions in Hunny Kids Educational Center, a running school facility which has students. She further submits that she is continuously threatened and intimidated by the Defendant thus the suit property is at risk of being alienated to third parties, which would render her investment worthless and the Arbitral proceedings nugatory, yet the balance of convenience favours her. 17.To buttress her averments, the Plaintiff relied on the following decisions: Scope Telematics International Sales Limited v Stoic Company Limited & another [2017] KECA 545 (KLR); Njenga v Micasa Investments Limited (Civil Appeal E115 of 2024) [2024] KEH 16795 (KLR); American Cynamid Co. v Ethicon Ltd (1975) AC 396; Joseph Sire Oromo v Housing Finance Company of Kenya (2008) eKLR and Anis Africa Ventures Limited v National Land Commission [2021] eKLR. 18.On his part, the Defendant submits that the Plaintiff has failed to establish a prima facie case against him since she left a substantial balance of Kshs.900,000/= unpaid, thereby breaching a fundamental term of the contract between them, thus she cannot seek equitable protection while being in breach. 19.He also submits that the Plaintiff’s insistence on issuance of a title deed is an afterthought intended to frustrate completion of the transaction despite full knowledge that the property is society land, thus it is an attempt to purport to rewrite the terms of the contract between them. To this end, he relied on the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another (Civil Appeal 95 o 1999) [2001] KECA 362 (KLR) (8 June 2001) (Judgment). 20.He also relies on the case of Gimalu Estates Ltd & 4 others v International Finance Corporation & another [2006] KEHC 2162 (KLR) to submit that where a purchaser fails to complete a transaction within the agreed timelines, the vendor is entitled to treat the contract as repudiated. Further, that the allegations of intimidation and threats levelled against him are unsubstantiated, and intended solely to mislead the Court and attract sympathy. 21.Insisting on his willingness to refund the Plaintiff’s deposit of Kshs.500,000/= subject to vacant possession being delivered and mesne profits being assessed, he submits that any alleged loss by the Plaintiff is quantifiable and compensable by way of damages. Further, that the balance of convenience tilts in his favour as owner of the suit property as the Plaintiff remains in occupation without paying the outstanding purchase price. 22.On referral of the dispute to Arbitration, he submits that while the impugned agreement contains an arbitration clause, the Plaintiff cannot invoke it selectively while remaining in breach, it is a demonstration of lack of good faith. Analysis and Determination 23.Upon consideration of the instant Notice of Motion application including the respective affidavits and rivalling submissions, at this juncture the only issue for determination is whether the Plaintiff has met the threshold for interim protection pending referral of the matter to arbitration. 24.In line with the principles established in the case of Giella v Cassman Brown (1973) EA 358, I will proceed to determine whether the Plaintiff has demonstrated a prima facie case to warrant the granting of interim measures pending outcome of the arbitral proceedings. 25.The Plaintiff’s claim is that on 16th November 2023, she entered into an agreement for sale of Plot No. K5 of Nairobi Block 136/Drumville with the Defendant, who misrepresented himself as the registered owner with capacity to transfer the suit property to her but it appears he did not have capacity to do so. She further contends that it was a term of the agreement between them that the Defendant would deliver to her completion documents on or before the completion date and that she would thereafter pay the balance and be registered as owner. 26.She contends that relying on the Defendant’s word and since he is an Advocate of the High Court of Kenya, she established and operates a school known as Hunny Kids Educational Centre on the suit property and that she invested substantial sums awaiting transfer of the suit property but the Defendant issued her with a termination notice and a notice to vacate. She hence seeks referral of the dispute to arbitration pursuant to Clause 13 of the Sale Agreement, which contemplates arbitration in the event of disputes arising from the contract. 27.The Defendant does not dispute that he issued the Plaintiff with a notice terminating the agreement between them and requiring her to vacate the suit property on the basis that she defaulted by failing to pay the balance of Kshs.900,000/=. He further does not dispute that there is an arbitration clause in the impugned sale agreement. He has offered to refund her Kshs.500.000/- deposit paid. He contends that it would be inequitable and unjust to allow the Plaintiff to continue enjoying the suit property while simultaneously refusing to complete payment, as it would amount to sanctioning unlawful occupation and unjust enrichment. He also contends that Plaintiff is merely using the arbitration clause as a delaying tactic intended to prolong her occupation of the property without completing the transaction. 28.On grant of interim measures pending arbitration, Section 7 of the Arbitration Act provides that:“ 7.Interim measures by court1.It is not incompatible with an arbitration agreement for a party to request from the High Court, before or during arbitral proceedings, an interim measure of protection and for the High Court to grant that measure.(2)Where a party applies to the High Court for an injunction or other interim order and the arbitral tribunal has already ruled on any matter relevant to the application, the High Court shall treat the ruling or any finding of fact made in the course of the ruling as conclusive for the purposes of the application.” 29.In the case of Safaricom Limited v Ocean View Beach Hotel Limited & 2 others [2010] eKLR, it was held as follows:“Under our system of the law on arbitration the essentials which the court must take into account before issuing the interim measures of protection are: - 1. The existence of an arbitration agreement. 2. Whether the subject matter of arbitration is under threat.3. In the special circumstances which is the appropriate measure of protection after an assessment of the merits of the application 4. For what period must the measure be given especially if requested for before the commencement of the arbitration so as to avoid encroaching on the tribunal’s decision making power as intended by the parties……………..It may be necessary for an arbitral tribunal or a national court to issue orders intended to preserve evidence, to protect assets, or in some other way to maintain the status quo pending the outcome of the arbitration proceedings themselves. Such orders take different forms and go under different names. Whatever their description however, they are intended in principle to operate as 'holding” orders, pending the outcome of the arbitral proceedings.” 30.On referral of the dispute to arbitration, it appears that the prayer is spent as the Plaintiff had earlier indicated that the matter had been referred to arbitration. The Court acknowledged this in its Ruling herein dated the 2nd December 2025 where it stated as follows at paragraph 12:“The Plaintiff contends that she has referred the matter to arbitration but is also seeking interim measures from Court to protect the substratum of the suit…” 31.In any case, Section 6(1) of the Arbitration Act provides as follows:“6(1) A court before which proceedings are brought ina matter which is the subject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to arbitration unless it finds—(a)that the arbitration agreement is null and void, inoperative or incapable of being performed; or(b)that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration.” 32.Applying the above provision, the Court of Appeal stated as follows in UAP Provincial Insurance Company Ltd v Michael John Beckett [2013] KECA 205 (KLR):“It is clear from this provision that the enquiry that the court undertakes and is required to undertake under section 6(1)(b) of the Arbitration Act is to ascertain whether there is a dispute between the parties and if so, whether such dispute is with regard to matters agreed to be referred to arbitration. In other words, if as a result of that enquiry the court comes to the conclusion that there is indeed a dispute and that such dispute is one that is within the scope of the arbitration agreement, then the court refers the dispute to arbitration as the agreed forum for resolution of that dispute. If on the other hand the court comes to the conclusion that the dispute is not within the scope of the arbitration agreement, then the correct forum for resolution of the dispute is the court.” 33.The Plaintiff seeks a joint valuation by an independent valuer, of the construction and improvements allegedly undertaken on the suit property. I opine that this would fall under interim measures contemplated under Section 7 of the Arbitration Act, enumerated at paragraph 27 herein, which the court has discretion to grant. 34.Looking at the documents presented, I note there is a sale agreement dated the 16th November, 2023 between the Plaintiff and the Defendant. Further, Clause 13, of the said sale agreement provides for arbitration wherein parties are directed to refer the matter to arbitration in the first instance, in case any dispute arose herein in respect to the subject matter. I note the Defendant had also filed a Notice of Preliminary Objection dated 24th March 2024 contending that this Court lacks jurisdiction to hear the matter as the arbitration clause embedded in the contract dated the 16th November 2023 between the Plaintiff and himself supersedes its action. 35.Based on the facts as presented while relying on the legal provisions cited and associating myself with the decisions quoted, I find that since the impugned sale agreement which forms the fulcrum of the dispute herein contained an Arbitration Clause, the Plaintiff has indeed established a prima facie case to warrant grant of interim measures pending outcome of the arbitral proceedings. Further, that it would be just and proper if the dispute was first handled by an Arbitrator and direct the parties to proceed and do so. 36.In the foregoing, I find the instant Notice of Motion merited and will allow it in the following terms:i.That restraining orders be and are hereby issued to the registered owner of Plot No. K5 of Nairobi Block 136/Drumville together with Mr. Bernard Tony Atancha, the respondent herein from evicting or interfering with the Plaintiff's peaceful possession and occupation of the said property known as Plot No. K5 of Nairobi Block 136/Drumville pending reference of the dispute herein to arbitration and outcome of the said arbitration proceedings.ii.Costs of the application to be in the cause. DATED SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF JULY, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Wamuti for RespondentMark Otieno for Okatch for PlaintiffCourt Assistant: Vena