https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3828

Mangeni (Suing as the Legal Representative of the Estate of Joel Abuti Eshitashe - Deceased) v National Bank of Kenya & another (Environment and Land Appeal E007 of 2024) [2026] KEELC 3828 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3828 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Appeal E007 of 2024 L Waithaka, J June 10, 2026 Between Getrude Awino Mangeni (Suing as the Legal Representative of the Estate of Joel Abuti Eshitashe - Deceased) Appellant and National Bank of Kenya Respondent and The Last Village Ltd Interested Party Ruling 1.Vide a ruling delivered on 2nd April 2025, this Court differently constituted, inter alia issued an order of temporary injunction restraining the 1st respondent herein by itself, it’s agents, servants from offering for sale by auction, transferring, alienating or in any other manner changing the ownership of land parcel No.Bukhayo/Mundika/4244 pending the hearing and determination of this appeal. The Court also stayed proceedings and ruling in Busia ELC CMC No.E116 of 2024 pending the hearing and determination of this appeal. 2.Claiming that the orders issued by this Court were issued on account of material none disclosure of facts by the parties before the Court, namely failure to disclose to the Court that by the time the application pursuant to which the orders were issued, the suit property had been sold to it hence it had interest in the suit property, the interested party (now 2nd respondent), filed the Notice of Motion (Application) dated 15th September 2025, in which it seeks the following orders:-i.Spentii.That the Honourable Court be pleased to vary, set aside or discharge the injunction orders granted on 2nd April 2025 and allow the transfer of the suit property to it;iii.That the court be pleased to lift the orders staying the proceedings in Busia ELC CMC No. E116 OF 2024 to allow conclusion of the case;iv.That in the alternative, the appellant be ordered to deposit monthly rental income of Kshs.30,000/- to the respondent or other secure account starting 25th April 2024 until conclusion of the appeal, failing any payment, the injunction be discharged and the appeal be dismissed with costs.v.That the appellant bear the costs of the application. 3.The application is premised on the grounds on its face and supported by the affidavit of Adrian Ojiambo, who has identified himself as a Director of the interested party/applicant, in which the grounds on the face of the application are reiterated. In particular, the application is premised on the grounds that there was material none disclosure of facts to the Court by the parties to the application namely, that the suit property was sold to the applicant on 25th April 2024, way before the application was filed; that the interested party (now the 2nd respondent) was not joined in the suit to defend/protect its interest in the suit property; that the proceedings pursuant to which the orders sought to be varied/discharged have significant impact on the applicant’s right as the applicant was condemned unheard; that the orders sought to be varied or discharged are adverse to the applicant as they stopped transfer of the suit property to it and hearing of the suit pending before the lower court and that the orders amount to a violation of their property rights and financial interests. 4.It is the applicant’s case that the orders sought to be varied and/or set aside should not have been issued without its knowledge and being afforded an opportunity to be heard. 5.Lamenting that the appellant is in use and occupation of the suit property despite it having been sold to it, the interested party is concerned that there has been delay in hearing the appeal thereby occasioning it loss and prejudice. 6.Arguing that there is an error apparent on the record of the Court, (the 2nd respondent claims/contends that the court did not consider the merit of the application for injunction), the applicant urges the Court to grant it the orders sought on the grounds that any loss occasioned to the appellant can be fully compensated in damages by the 1st respondent. 7.The applicant laments that it has been deprived of its investment yet the appellant has not offered any security and that the order of stay of proceedings in the lower court is denying the ventilation of the dispute thereby occasioning prejudice to the parties. 8.In reply and opposition to the application, the appellant filed the affidavit (replying) he swore on 20th April 2026 in which she inter alia depones that the applicant is a stranger to her; that the application is a disguised appeal against the orders of this Court and that she could not have joined the applicant to the application pursuant to which the orders were issued or the suit pending before the lower court because she was not aware of its interest in the suit property and that she cannot be blamed for the ingenuity of the 1st respondent; that the 1st respondent is seeking to re-litigate her application through the instant application while the right thing to do was to file an appeal against it if it was dissatisfied with the decision of the Court; that no rights of the applicant have been violated and that she cannot be compelled to pay rent in her home. Further, that the balance of convenience tilts in her favour as she stands to lose her home as opposed to the applicant whose loss, if any, is compensable by refund of his money and award of damages. 9.The appellant maintans that she was not made aware of the auction and regarding the delay in prosecution of the appeal, avers that it was occasioned by negotiations between her and the respondent. 10.The appellant avers that no tenant-landlord relationship exists between her and the applicant on which the demand for payment of rent can hinge. 11.Urging that it is in the interest of justice to preserve the subject matter of the suit pending the hearing and determination of the appeal, the appellant/respondent urges the Court to dismiss the application with costs to her. 12.When the application came up for mention for directions, the applicant informed the court that it had filed written submissions and would be relying on them. The appellant/respondent informed the court that it would be relying on its replying affidavit. Counsel for the 1st respondent informed the court that it supports the application (it is not opposing it). 13.In his submissions, dated 1st October 2025, the 2nd respondent/applicant has given an overview of the circumstances leading to filing the instant application and framed three issues for the Court’s determination. These are:-i.Whether the Court should vary, set aside or discharge the injuction;ii.Whether the order staying proceedings in Busia ELC CM No.E116 of 2024 should be lifted; andiii.Who should bear the cost of the application? 14.On whether the court should vary, set aside or discharge the injuction, the applicant has submitted/addressed the Court as follows:-“The right to be heard before any adverse decision is taken against a person is fundamental and permeates our entire justice system.Underlining the importance of the right to be heard the Court of Appeal in James Kanyiita Nderitu and another vs. Marios Philitas Ghilikas & another (2016)e KLR on page 8 quoted the following excerpt from the Supreme Court of India:“There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of Natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.The 2nd Respondent, having properly purchased the property from the Bank without notice of any adverse claims is entitled to the property both legally, equitably and under the doctrine of constructive trust.Based on the above interest of the 2nd respondent as demonstrated above we urge the court to discharge the injunction.” 15.The respondent gives four (4) reasons/grounds for its submission that the injunction should be discharged. These are:-a.Alleged concealment of material facts;b.Claim that the injuction orders were issued without it being heard;c.Claim that there is an error apparent on the face of the record; andd.Alleged inequitable conduct of the appellant. 16.Concerning the alleged concealment of material facts, the applicant has submitted/addressed the Court as follows:-“The High Court in Filista Chemaiyo Sosten v Samson Mutai (2012) KEHC 322 (KLR) describes what constitutes concealment of material facts. The Court opined that where an injunction is obtained through the suppression or witholding of material facts which, if disclosed, would likely have influenced the judge’s decision on whether to grant the injunction, such conduct amounts to concealment of facts.The 2nd Respondent being the successful bidder and a bona fide buyer was entitled to the property. For the appellant’s application for injunction dated 29th April 2024 to be brought, prosecuted and determined without the 2nd Respondent was a clear violation of the 2nd Respondent’s right as the rightful purchaser.The Appellant’s concealment of material information was aimed to restrict the 2nd Respondent from participating in the proceedings and block its transfer and possible occupation of the suit property despite a legal public auction. Had the Court been informed of the sale to the 2nd Respondent, the Court would have required the attendance of the 2nd Respondent. Full disclosure would have affected the court’s decision on the merits. The 2nd Respondent, therefore submits that based on this ground, the court be pleased to vary, set aside or discharge the injunction.” 17.Concerning the claim that the injuction orders were issued without it being heard, the 2nd respondent submits/addresses the Court as follows:-“The Rule of Natural Justice, audi alteram partem, demands that a party not be condemned unheard. Addressing the opportunity of a party to be heard in the context of default judgments in, James Kanyiita v Marios Philotas (2016) (KLR) above the Court held that a person against whom an adverse decision is to be passed has a right to be heard:“The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into consideration of whether the intended defence raises triable issue or whether there has been in ordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right and not as a matter of discretion is because the party against whom it is entered has been condemned without notice of allegation against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system”.The order of injunction issued issued by the court directly affects the rights of the 2nd respondent, who was condemned unheard. The Appellant and the 1st Respondent neither joined the 2nd Respondent in the matter nor served it even with the knowledge that it was the purchaser of the suit property. The parties did not inform the 2nd Respondent of the existence of these proceedings.Upon lodging the transfer by charge for registration with the Land Registrar Busia, the same was rejected and the Applicant was informed of the court orders issued on 2nd April 2025. That was when the 2nd Respondent learnt of these proceedings.The adverse orders were made without the 2nd Respondent having notice of the application or opportunity to be heard in response to the same. The 2nd Respondent therefore submits that the court issue an order varying, setting aside or discharging the injunction.” 18.With regard to the claim or contention that there is an error apparent on the face of the record, the applicant submits/addresses the court as follows:-“The third ground relied on by the 2nd Respondent/Applicant for discharge of the injunction order is an error apparent on the face of the record. In defining what constitutes an error apparent on the face of the record, the Court in Benson W. Kaos & 72 others v. Attorney General & 85 others (2022)KEELC 1714 (KLR) addressed the issued as follows:“What constitutes an error apparent on the record was discussed in the case of ChandraKhant Joshibhai Patel v R (2004) KLR, 218. In that case the court held that an error apparent on the face of the record is one which:“must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reading on points on which may be conceivably be two opinions.Guided by the authorities cited, my humble view, an error apparent on the face of the record has to constitute two main things, one, there is a record, and two, there is an error, and three, the error is one which is such that a person looking at the record without further inquiries to fill in gaps notes it immediately in such a manner as to shout without hesitation, Ah! With all this, what happened here?”Turning to the ruling delivered by the honourable Court on 2nd April 2015, the Court stated at paragraph 14 that “It would be superflous to grant prayers (f) and (g) which prayers sought the injunctive order. In reaching that conclusion, the Court was guided by the case of Patricia Njeri & 3 others v National Museums of Kenya (2004)e KLR, which set out the principles to be followed in issuing injunction orders in an application for stay of execution. In a surprise turn, the court allowed the very prayers of injunction. There is an error on the face of the record.” 19.With regard to the alleged inequitable conduct of the appellant, the applicant has submitted/addressed the court as follows:-“An order of injunction is meant to be an equitable remedy to shield a party against the violation of rights. The order cannot be used to trample on the right of another party. Where the conduct of the party does not meet the approval of the court which granted it, the court ought to discharge such orders.Since the injunction was issued, the appellant has not taken any steps to prepare and prosecute the intended appeal. She continues to occupy the suit property shielded by the injunction. No explanation has been offered for the failure to prepare the appeal for hearing. We urge the court to discharge the injunction and return the parties to their respective positions before the injunction.” 20.Concerning the jurisdiction of the court to vary, set aside or discharge an injunctive order the applicant submits as follows:-“This Court has jurisdiction under Order 40 Rule 7 of the Civil Procedure Rules to vary, set aside or discharge an interim order of injunction. The matters to consider in determining an application under Order 40 Rule 7 were aptly stated in Atlas Copco Customer Finance Ab v Polarize Enterprises (2016) KEHC 7640 (KLR) where the Court stated:-“It is imperative therefore that care be exercised to ensure that the plaintiff is not merely out to have a re-think of the matter and in this regard it is now trite that some of the factors that guide the exercise of the court’s discretion in this area of law include, but are not limited to:-a.Proof that the injunction was obtained by concealment of facts which, if presented, would have worked against granting the injunction;b.A radical change in the circumstances of the suit, such that it is no longer necessary to have the injunction;c.Proof that the general conduct of the holder of the injunction is such that the court is impelled to discharge the injunction, for instance, where the injunction is being used to intimidate the defendant or achieve ulterior purpose;d.Proof that the sustainance of the injunction would cause an injustice.” 21.Cognizance that the court is not bound to accept its case for setting aside of the injunctive order, in alternative to the prayer for setting aside or discharge of the injunctive order, the applicant urges the Court to vary the order and require the appellant to be paying monthly rent to the 1st respondent calculated at Kshs.30,000/-. Concerning that prayer, the applicant submits/addresses the court as follows:-“In the unlikely event that the court is reluctant to discharge the injunction, the Applicant requests an alternative prayer of Kshs.30,000/- per month. The Applicant has paid off the loan owed by the Appellant to the 1st Respondent while the Appellant retains the benefit of the property to the detriment of the Applicant.The 2nd Respondent is deprived of its investment while the Applicant enjoys occupation of the suit property. She has offered no security whatsoever.It is therefore in the interest of justice that the injuction be varied, set aside or discharged and in the alternative, a deposit of monthly rents of Kshs.30,000/- by the Appellant/Respondent.” 22.On whether the order staying proceedings in Busia ELC MC No.E116 of 2024 should be lifted the applicant submits/addresses the Court as follows:-“The 2nd Respondent/Applicant has submitted that it did not participate in the proceedings to allow the application by the Appellant/Respondent. The order of stay of proceedings has denied ventilation of the dispute to its conclusion. The 2nd Respondent/Applicant continues to suffer prejudice in light of the orders that were made without being accorded an opportunity to be heard.In light of the foregoing and fortified by the decision in James Kanyiita Nderitu (supra), the 2nd Respondent/applicant submits that it is in the interest of justice that the court lifts the order staying the proceedings in ELC MC No.E116 of 2024.” 23.On costs, based on the provisions of Section 27 of the Civil Procedure Act and the decision in the case of Jasbin Singh Rai & 3 others v Tarlochan Singh Rai & 4 others (2014) KESC 31 (KLR), the applicant submits that unless the court for good reason orders otherwise, costs are payable to a party who shows a litigimate case, otherwise put to the successful party. 24.Maintaining that its application has merits and ought to be allowed as prayed, the applicant urges the court to allow its application, dated 15th September 2025, with costs to it. 25.I have carefuly read, considered and analyzed the application by the applicant, dated 15th September, 2025, the response thereto and the submissions by the applicant in respect thereof. 26.From the grounds taken up in support of the application, the affidavit evidence tendered in support thereof and the submissions by the applicant, I gather that the application hinges on alleged denial to participate in the application by the appellant/respondent which application culminated in orders adverse to the applicant in that the orders affected the applicant’s beneficial interest in the suit property. 27.Whilst the applicant has presented a case for denial of hearing, considering that it was not a party to the proceedings that culminated in the impugned ruling or orders, it is the considered view of this Court that the case for the applicant as relates to denial of the right to be heard may not succeed considering that it was not a party to the proceedings in which the impugned orders were sought. No allegations were leveled against it, which the Court was called upon to determine. What happened, in the circumstances of this case, is that the appellant/respondent sought orders against the 1st respondent with whom she was litigating. 28.Whereas the orders sought by the appellant/respondent had the effect of affecting persons, like the applicant, who might have gained interest in the suit property, it is the considered view of this Court that the appellant/applicant cannot be faulted for having failed to join a person who had dealings with the 1st respondent over the suit property during the pendency of the suit. The duty to disclose transactions, which might have affected the suit property to the Court lay with the 1st respondent and not the appellant/respondent. 29.In her response to the applicant’s claim that she concealed material facts to the court, the appellant/respondent has deponed that she was a stranger to the interest of the applicant and that she could not join a stranger to the suit or application. While that averment has a bearing on the claim by the applicant that the appellant/respondent knew about its interest in the suit property and failed to add or join it to the suit to defend its interest, the applicant did not file a supplementary affidavit with a view of controverting or countering the claim by the appellant/respondent that she was a stranger to the applicant’s claim. There is nothing in the applicant’s supporting affidavit capable of showing that by the time the applicant obtained the impugned orders, she knew or ought to have known that the suit property was sold to it. Arising from the foregoing, I find and hold that the alleged none disclosure of material facts, at least, as relates to the appellant/respondent has not been substantiated. 30.While from the totality of the evidence adduced in the instant application I have no doubt that the applicant was a proper party to the proceedings which culminated in the impugned orders, I am not convinced that the applicant can rely on the failure by the 1st respondent to inform the court about changes in the status of the suit property to defeat the orders issued against a primary actor in the suit and proceedings before the Court, the 1st respondent. Considering the time taken from the time the applicant acquired its interest in the suit property and the time the impugned orders were issued, I entertain doubt whether a diligent buyer of property, which is subject of a dispute before Court, would not know of existing court cases and/or the orders issued in respect thereof. 31.Arising from the foregoing and taking into account the fact that the rights of the 2nd respondents to the suit property flow from those of the 1st respondent such that, if the 2nd respondent had no right to sale the suit property, the 2nd respondent might have no interest in the suit property capable of legal protection, I decline to entertain the applicant’s invitation to set aside or discharge the impugned order of the court on the alleged non disclosure of material facts. 32.As to whether there exists an error apparent on the face of the court record, my view of what the applicant calls an error on the face of the record, is an apparent contradiction on the findings of the Court. To appreciate what the intention of the Court was, the Court needs to interrogate the entire ruling of the Court with a view of appreciating whether or not the final orders issued by the Court were not the ones intended to be issued by the Court. I have read the ruling of the Court and I am unable to find anything suggesting that it was not the intention of the Court to issue the orders it issued. That being the view of the matter, I find that ground to be incapable of forming a basis of granting the applicant the orders sought. 33.As to whether the delay in preparation and prosecution of the appeal herein warrants setting aside the impugned orders, the appellant/respondent has explained that the delay was caused by negotiations between the 1st respondent and herself concerning the subject matter of the dispute before Court. That explanation, has not been controverted by the 1st respondent or the applicant. Moreover, processing of appeals is guided by the provisions of Order 42 of the Civil Procedure Rules. Under those rules, processing of appeals for admission and hearing, is a joint responsibility of both the Court and parties. That being the case, the appellant may not be solely blamed for the delay in hearing and prosecution of the appeal. That said, parties ought to aid the court in fastracking the hearing and determination of their appeals, by complying with the strict timelimes provides in the rules. 34.Although, taking into account the timelines provided in Order 42 for processing of appeals for hearing, the explanation offered by the appellant for the delay in processing the appeal for admission and prosecution, may not be satisfactorily, I nevertheless find the delay not to be so in ordinate as to warrant setting aside the injunctive orders issued by the Court. 35.Concerning the prayer for variation of the injunctive order so as to make it conditional on payment of rent to the applicant, I find such prayer to be lacking substratum as it is not hinged on any pleadings by the 2nd respondent or any of the parties on which it can hinge. 36.As to whether this Court should lift the order of stay of proceedings in the suit in the lower Court so as to allow hearing and determination of that suit on its merit, other than indicating that the order was issued without its participation, the applicant has not laid a firm basis for lifting the order of stay of proceedings. 37.Being of the view that the order that commends itself in the circumstances of this case is to give orders that can lead to fastracking of the processing and hearing of the appeal, I direct the appellant, with the assistance of the Deputy Registrar of this court, to within six (6) months from the date of delivery of this ruling, to process and prepare the appeal for hearing and determination, failing which, unless for good reason this honourable Court extends the time herein given, the injunctive orders shall stand vacated/discharged. 38.The upshot of the foregoing is that I find the applicant’s Notice of Motion dated 15th September 2025, to be lacking in merits and I dismiss it with costs to the appellant/respondent. 39.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT BUSIA THIS 10TH DAY OF JUNE, 2026.L. N. WAITHAKAJUDGEIn the presence of:-N/A for the ApplicantMr. Bogonko wo’nchiri for the 1st RespondentN/A for the Interested PartyCourt Assistant: Sikolia