https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11262

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **(CONSTITUTIONAL & HUMAN RIGHTS DIVISION)** **CONSTITUTIONAL PETITION NO E458 OF 2026** **HARROGATE LIMITED………..……………….…………………….1ST PETITIONER** **SHREEDHAR GIRDHARLAL HIRJI…………………………………...2ND PETITIONER** **ALICE MUTHONI THUO……………………………………………..3RD PETITIONER** **VERSUS** **MWANANCHI CREDIT LIMITED....………….………………………1ST RESPONDENT** **CENTRAL BANK OF KENYA……...…………….……………………2ND RESPONDENT** **COMPETITION AUTHORITY OF KENYA…………………….……….3RD RESPONDENT** **THE HONOURABLE ATTORNEY GENERAL…………………………..4TH RESPONDENT** **RULING** **Introduction** 1. This is a ruling in respect of the Notice of Motion dated 14th July 2026, by which the petitioners seek conservatory orders to restrain the 1st Respondent, its servants, agents, employees, auctioneers, or any other person claiming through them, from selling by public auction on 21st July 2026 or by private contract, or from transferring or dealing in any manner whatsoever with the 1st Petitioner’s property known as LR NO 2327/252 situated in Karen, or any date thereafter, pending the hearing and final determination of the application. 1. This court considered the said motion in Chambers on 15th July 2026. Noting its urgency and the fact that the subject matter of the petition has been extensively litigated, it ordered that the application be served forthwith for inter partes hearing on 20th July 2026. **Submissions of the Petitioners/Applicants’ Counsel** 1. The matter was heard *inter partes* on 20th July 2026. I must point out that this ruling is confined to Prayer No 2 of the said motion. Mr Allen Waiyaki Gichuhi, SC, learned counsel for the Petitioners/Applicants, submitted that their main contention was that the amount demanded by the 1st Respondent breached the *in duplum* rule. He urged that the plot neighbouring the suit premises, which previously belonged to the Petitioners/Applicants, was sold, and the 1st Respondent received Kes 21,000,000/-. Counsel stated that the Petitioners/Applicants sought an opportunity to conclude an ongoing sale transaction, after which they would pay an amount equivalent to what would be justifiably payable under the *in duplum* rule. According to them, the lawful debt is Kes 65,000,000/-. 2. Counsel contended that the 1st Respondent’s actions breached Articles 25, 28, 40 and 45 of the Constitution. According to him, Mwananchi Credit Ltd, the 1st Respondent, being a financial institution, is subject to the in duplum rule. He stated that the 1st Respondent would not be prejudiced if the orders sought were granted. 3. Mr Gichuhi, SC, denied that there had been material non-disclosure. He stated that the existence of the related suits was disclosed. Regarding the fact that the property was owned by a company, counsel urged that a matrimonial home could be owned by a company. **Submissions of the Respondents’ Counsel** 1. The application was opposed. Mr Bulowa, learned counsel for the 1st Respondent, submitted that a person who goes to the court of equity must do so with clean hands. He contended that all the issues raised in the petition had been canvassed in other suits filed by the Petitioners/Applicants. In those suits, the Courts denied the Petitioners/Applicants' request for injunctive relief. He stated that the matter had been before the High Court and the Court of Appeal, and that a consent judgment was recorded at some point, which effectively resolved the matters in contention. Thereafter, they filed an application in the Commercial Division of the High Court, which was dismissed. 2. Mr Bulowa denied that the suit property was a matrimonial home. In his view, the dispute was commercial in nature. Counsel contended that the Petitioners/Applicants admitted indebtedness. He stated that the application sought to have the Constitutional Court sit in appeal against the decision of the Commercial Court. He further stated that the right to realize the security had accrued. 3. On his part, Mr Khaemba submitted that this matter was the 7th attempt by the petitioner/applicants to frustrate the sale. He stated that the matter wasn’t a constitutional dispute but rather a commercial one. In the alternative and without prejudice, he urged that if the court was minded to allow the application, it should do so on the condition that the disputed amount be deposited in court. **Analysis and Determination** 1. As already indicated, the Petitioners/Applicants seek conservatory orders. The matter has been extensively litigated. The latest matter was the Notice of Motion dated 22nd April 2026 which was filed at the Commercial Division of the High Court. The latter application was based on the alleged lack of ministerial consent to vary the interest rate from the inception of the loan facility to date, and the alleged breach of the *in duplum* rule. 2. In the said application, the 1st and 3rd Petitioners/Applicants sought, inter alia, an extension of time to pay the correctly assessed debt. Further, it was stated that the property was matrimonial. 3. The matter was considered by Hon Rhoda Rutto J. Her Ladyship declined to set aside the consent judgment. She found at paragraph 23 that:- *“Consequently, in the duplum principle, as settled by the* *Supreme Court in* ***Stanbic Bank Kenya Ltd v Santowels Ltd [2024] KESC 31 (KLR)****, it is inapplicable to the circumstances of this case.”* 1. At paragraph 25 of the ruling, the learned Judge stated that: *“Similarly the argument that the suit property constitutes* *matrimonial property is untenable. The suit property is registered in the name of the 1st applicant, a duly incorporated limited liability company. As a separate legal entity, the 1st applicant is incapable of owning matrimonial property.”* 1. The ruling was delivered on 2nd July 2026. Thereafter, the Petitioners/Applicants filed the instant petition. 2. The petition before me seeks enforcement of the Bill of Rights pursuant to Article 22 of the Constitution. Article 23 (3) (b) provides that in appropriate cases the court may issue conservatory orders. 3. In the case of **Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR)** it was held that:- 4. ***I state without vacillation that the path to be followed by a court seized with an application under Article 23 (3) (d) is now relatively clear.*** 5. ***Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others –v- The Attorney General [HCCP No. 16 of 2011]:*** ***“[Arguments] in this ruling relate to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution”.*** 1. ***It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis. In these respects, I would quickly make reference to M. Ibrahim J (as he then was) in the case of Muslims for Human Rights [MUHURI] & Others –v- Attorney General & Others CP No. 7 of 2011, who whilst agreeing with Musinga J’s statement in Centre for Rights Education and Awareness [CREAW] and 7 Others –v- The Attorney General (Supra) stated as follows:-*** ***“I would agree with my brother that an applicant seeking conservatory orders in a Constitutional case must demonstrate that he has a prima facie case with a likelihood of success” (emphasis).*** 1. In the said case, the court went on to state the second test as being whether the grant or denial of conservatory relief will enhance the constitutional values and objects of the specific right or freedom in the Bill of Rights. The court held that the other considerations would be whether the grant or denial of the conservatory order will render the substratum of the petition nugatory and, lastly, where public interest lay. (See the case of **Gatirau Peter Munya v Dickson Mwenda Githinji & 2 others [2014]eKLR)**. 2. Does the petitioner have a prima facie case with a likelihood of success? In **Mrao Ltd v First American Bank Ltd & 2 Others [2003] KECA 175 (KLR),** Bosire JA stated as follows:- ***“So what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”*** 1. There is no doubt that the 1st Petitioner has a loan with the 1st Respondent. The loan is in arrears; that much is conceded by the Petitioners/Applicants. In fact, they seek time to pay off what they consider to be an undisputed debt. The matter has been the subject of severe contestation in various courts, and the outcomes appear not to have been favourable to the Petitioners/Applicants. 2. As already shown, the grounds raised in the petition have been considered by other courts. The issues considered include the applicability of the in duplum rule, the binding nature of the consent judgment, and whether the suit property is matrimonial. In view of that fact, it appears to me, based on the material presently before me, that there is no prima facie case. I have appropriately cautioned myself that, upon trial, the court may nevertheless reach a different finding. 3. The Respondents have stated, quite rightly in my view, that the dispute is a commercial dispute, arising out of a commercial lending transaction. At this prima facie level, without more, I am not convinced that the application is rightly before me. In the case of **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR)** it was held that:- ***“The principle of constitutional avoidance entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis. It is a sound judicial practice for courts to decide cases on non-constitutional grounds if that course is available.”*** 1. I am of the view that a decision that respects the doctrine of constitutional avoidance will enhance constitutional values as a court, rightly clothed with jurisdiction, will consider the matter. 2. Will the substratum of the petition be rendered nugatory? As already stated, the borrower charged its property. Upon doing so, the property became a chattel for sale in the event of default. Any loss the Petitioners/Applicants may suffer would be compensable by an award of damages. It has not been alleged that the 1st Respondent, a financial institution, will be unable to pay any sums the Court may order as compensation. 3. On public interest, I am satisfied that the public interest will be served by a decision that upholds the binding nature of commercial contracts. **Final Orders** 1. It is apparent from the foregoing that I am not satisfied that there is a case for the issuance of conservatory orders. I decline to grant prayer No 2 of the Notice of Motion dated 14th July 2026. I direct that the application be heard inter partes in respect of the remaining prayers on **23rd September 2026**. 2. The costs shall be in the cause. 3. It is so ordered. **Dated** and **signed in Nairobi, this 23rd day of July 2026.** **Gregory Mutai** **JUDGE** **In the presence of:** Mr **Mutugi,** holding brief for **Mr Allen Gichuhi, SC** forthe **Petitioner;** Mr **Paul Bulowa,** for the **1st Respondent;** Ms **Rukiya,** for the **4th Respondent;** Mr **Kiprop,** holding brief for **Ms Rono,** for the **3rd Respondent;** and Ms **Neema Lwambia – Court Assistant**.