https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5149

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI** **ELCLC NO. E018 OF 2026** **JOSEPH VINCENT OYILE MAGOHA………………..1ST PLAINTIFF/APPLICANT** **EDWINA ADHIAMBO OWUOR-MAGOHA….......2ND PLAINTIFF/APPLICANT** **-VERSUS-** **RINGSVIEW APARTMENTS LIMITED…...…1ST DEFENDANT/RESPONDENT** **DR. MBIRA GIKONYO…….................…...…..2ND DEFENDANT/RESPONDENT** **KCB BANK KENYA LIMITED..........…………..3RD DEFENDANT/RESPONDENT** **RULING** 1. Before me is the notice of motion dated 14th January, 2026 filed by the plaintiffs/applicants, and it is expressed to be brought under **Sections 1A,1B, 3A** and **63 (e)** of the **Civil Procedure Act** and **Order 40 Rules 1,2,3** 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 suit herein, the honourable court be pleased to issue a*** ***temporary injunction restraining the defendants from advertising for sale, selling by public auction, disposing of, alienating, transferring, charging, or in any manner dealing with Apartments No.C2 and B4 situated in LR. No. 4858/11 in Kileleshwa.*** 5. ***That pending the hearing and determination of the suit herein, the honourable court be pleased to issue*** ***an order of inhibition be registered against apartment C2 and B4 to prevent any dealings.*** 6. ***That costs of the application be provided for.*** 7. The application is premised on the grounds on its face. It is further supported by the affidavit of the 1st plaintiff/applicant sworn on even date. He deposed that they had entered into an agreement to purchase apartments No. B1 and C2 on LR. no. 4858/11 in Kileleshwa, from the 1st defendant/ respondent for Kshs.25 million in the year 2012, later substituting B1 with B4. They fully paid the purchase price by 22nd February 2013, but the 1st defendant/respondent failed to transfer the units to them, but instead collected rent, and later fraudulently charged the suit properties to the 3rd defendant/respondent in the year 2020. 8. The 1st plaintiff/applicant deposed that they later obtained an arbitral award in their favour, which was adopted as an order of the court and the decision was made that the 1st defendant/respondent should transfer the suit properties, but they are yet to do so. They found out that a notice of redemption of sale via auction by Garam investments acting for the 3rd defendant/respondent was published, that Apartment C2 would be sold on 27th January 2026, which came to their attention through an e-mail forwarded by their advocates. The 1st plaintiff/applicant contends that the intended auction is illegal, fraudulent and threatens to permanently deprive them of their home. 9. The application was opposed vide the replying affidavit of the 2nd defendant/ respondent sworn on 6th of February, 2026 on his behalf and on behalf of the 1st defendant/respondent. The 2nd defendant/respondent denied ever receiving money from the plaintiffs/applicants, whether pursuant to any alleged sale agreement or otherwise. He deposed that he has been improperly and mischievously joined to these proceedings in his personal capacity, as no reasonable or sustainable cause of action has been disclosed against him personally. He highlighted that the suit properties are owned by the 1st defendant/respondent, which is a limited liability company duly incorporated under the **Companies Act** and possessed of a distinct legal personality separate and independent from its directors, shareholders and officers. 10. The 2nd defendant/respondent averred that no factual or legal basis has been laid to warrant the lifting of the corporate veil in this matter and no application for the same is before the court. He deposed that neither the 1st defendant/respondent nor himself is associated with, related to, acting in concert with, or under the direction or control of the 3rd defendant/respondent. Further, that at no time has the 1st defendant/respondent or himself exercised, or been capable of exercising, any control, influence, authority or operational oversight over the 3rd defendant/respondent’s decisions, including its intention to exercise any statutory power of sale over the suit properties, which he has always opposed. 11. The 2nd defendant/ respondent deposed that during the arbitral proceedings, the 1st plaintiff/applicant asserted that he had paid Kshs.37,000.000/- to the law firm of Mulondo, Oundo, Muriuki & Co. Advocates on behalf of the 1st defendant/respondent. However, he denied that no such monies were ever received by the 1st defendant/respondent, and the alleged payments, if any, were never remitted to the company. Further, that they have persistently followed up this issue for a period exceeding ten (10) years without any satisfactory response from Mulondo, Oundo, Muriuki & Co. Advocates and Mulondo & Company Advocates, being the successor firm, and most recently issued a formal demand through its advocates vide a letter dated 5th December 2025, which they state is professional misconduct. 12. He deposed that the arbitral award was manifestly erroneous, unreasonable and contrary to the evidence on record in that it ordered the 1st defendant/respondent to pay the plaintiffs/applicants rental income from the year 2014 to date, notwithstanding the undisputed fact that the plaintiffs/ applicants were in occupation and possession of the apartment C2 during the same period, thereby unjustly enriching them to the tune of approximately Kshs.4,000.000/-. Further, that the arbitral award irregularly and unjustifiably granted apartment B4 to the 1st plaintiff/applicant, despite there being no evidence whatsoever that he ever paid the purchase price or any consideration for the said apartment. 13. That being gravely aggrieved by the said arbitral award, the 1st defendant/respondent moved to court under Milimani HCCMMARB No. E002 of 2024 seeking orders staying the execution thereof and further lodged a notice of appeal with the intention of challenging the adoption of the impugned award as a judgment of the court. It is the 1st and 2nd defendants/respondents position that they raise no objection to the temporary suspension of the intended auction of the apartments, as proceeding with the same would unnecessarily complicate several matters currently pending before courts of competent jurisdiction, and that the maintenance of the status quo pending the final determination of all the said matters would best serve the interests of justice and would not occasion prejudice to any party. 14. The 3rd defendant/respondent filed grounds of opposition dated 26th January 2026, opposing the instant application on grounds that it has been brought to impede the lawful exercise of its statutory power of sale, which rights arise from a valid and duly registered charge and take priority over any unregistered interests pursuant to **Sections 25(1)** and **26(1)** of the **Land Registration Act**. The 3rd defendant/respondent contends that the plaintiffs/applicants, not being parties to the charge instruments, lack *locus standi* to challenge or restrain its statutory rights as they have no privity of contract over the subject charge in question. Further, that damages are an adequate remedy, and that the plaintiffs/applicants have failed to meet the threshold for the grant of injunctive relief as established in **Giella v Cassman Brown & Co. Ltd [l973] EA 358.** 15. Emily Sigey, the recovery manager of the 3rd defendant/respondent, filed the replying affidavit sworn on 6th February, 2026. She highlighted that in the 1st plaintiff/ applicant’s witness statement dated 14th January, 2026 which he relied upon and referred to in his supporting affidavit, the 1st plaintiff/applicant concedes that at the time the suit properties were purchased, they were already charged to I & M Bank. Further, that the 1st defendant/respondent applied for a mortgage facility from the 3rd defendant/respondent to the tune of Kshs.90,000,000/= for purposes of paying off construction loans, which was through letter of offer dated 25th July, 2018 whose purpose was to take over the previous loan facilities owed to I& M bank. 16. The 3rd defendant/respondent deposed that it is a stranger to the sale transactions between the 1st defendant/respondent and the plaintiffs/applicants as well as the substitution of apartment BI with B4 and is also not privy to the payments purportedly made between the plaintiffs/applicants and the 1st defendant/respondent. The 3rd defendant/respondent asserts that it conducted its due diligence and on the support of all the securitization documents including the title and the leases therein in respect of the charged apartments, a legal charge dated 3rd October, 2018 was registered against the charged apartments including the suit properties in November 2018 to secure the principal sum of Kshs.90,000,000/=. 17. It was further deposed that the 1st defendant/respondent defaulted in its loan obligations as and when they fell due, compelling the 3rd defendant/respondent to exercise its statutory power of sale over all the 21 charged apartments. As at 16th October, 2025 the outstanding amount due and owing from the 1st defendant/respondent was Kshs.143,478,054.50/= which amount continues to accrue interest as per the terms of the letter of offer, as exhibited by the 1st defendant’s statement of accounts annexed to the replying affidavit. 18. Based on the above, the 3rd defendant/respondent proceeded to issue and served the 40 days statutory notice. Later on, due to the inaction of the 1st defendant/respondent to remedy the default, they instructed Garam investments auctioneers to issue a 45 days notification of sale which was advertised in the in the Daily Nation dated 12th January, 2026. The 3rd defendant/respondent deposed that the plaintiffs/respondents have failed to establish a prima facie case with a probability of success since it was neither privy to the alluded agreements for sale, nor the payments of the purchase price. 19. The 3rd defendant/respondent contends that the plaintiffs/applicants have long been aware of its intention to exercise its statutory power of sale and have therefore failed to show what irreparable harm they would suffer if the sale of the suit properties proceeds. It is their plea that the prolonged nonpayment has placed the 3rd defendant/ respondent in a precarious financial position and that it is the one that stands to suffer irreparable harm. 20. In response thereto, the 1st plaintiff/applicant filed the supplementary affidavit sworn on 11th March, 2026 and deposed that the 2nd defendant’s/respondent’s denial of receipt of funds from the plaintiff/applicant is misleading. Further, that his 2nd claim of improper joinder is untenable, as he is a necessary party by virtue of his directorship and personal involvement in the acts and omissions that gave rise to this dispute, including the failure to transfer the units and the subsequent charging of the same to the 3rd defendant/respondent. 21. In response to the 3rd defendant/respondent’s assertion that the charge over the suit properties was lawfully registered and that there are no overriding interests, the 1st plaintiff/applicant deposed that it is misleading and ignores the fact that they had already purchased and taken possession of the said units prior to the registration of the charge. He further deposed that the 3rd defendant/respondent’s reliance on the mortgage facility and the letter of offer dated 25th July, 2018 ignores the fact that the 1st defendant/ respondent had already received full payment for the apartments and had no legal or beneficial interest to charge them. Further, that it does not negate their equitable interest in the properties, which was judicially confirmed through an arbitral award and subsequently adopted as a court order. He asserted that their interest arises from prior contractual and proprietary rights which the defendants/respondents failed to consider at the time of charging the property. 22. He contended that the 3rd defendant/respondent’s position that they will suffer no prejudice is untenable, as the intended auction threatens to permanently deprive them of their home and defeat the fruits of a valid arbitral process and court judgment. It is his argument that the balance of convenience and interests of justice favour the grant of the temporary injunction sought, as it will prevent irreversible harm and uphold the sanctity of judicial and arbitral processes. 23. The application was canvassed through written submissions. The plaintiffs/applicants filed their written submissions dated 13th March, 2026. The 3rd defendant/respondent filed its written submissions dated 16th March, 2026 while the 1st and 2nd defendants/respondents filed their written submissions dated 1st April, 2026. I have considered the pleadings, the documents relied on by the respective parties and the written submissions filed. The issue for determination is *whether the plaintiffs/applicants have established a prima facie case to warrant the orders of temporary injunction pending the determination of the suit.* 24. The subject of dispute and contention are apartments no. B4 and C2 situated on LR. No. 4858/11 in Kileleshwa, the suit properties which the plaintiffs/applicants claim to have purchased from the 1st defendant/respondent through exhibited agreement dated 15th June, 2012, but titles were never transferred to them as agreed. The suit properties are now part of the properties which the 3rd defendant/respondent intends to exercise statutory power of sale to recover outstanding loan amounts owed to them by the 1st defendant/respondent. 25. The plaintiffs/applicant claim that they have a legal right to the properties, and that the same was confirmed through arbitral award dated 9th October, 2023, which was adopted as an order of the court in ELC Case No. 1190 of 2016 on 31st January, 2024. From the annexures, the said arbitral award decided that the 1st defendant/respondent should facilitate immediate registration of the suit properties to the plaintiffs/applicants which it is yet to do. 26. The 3rd defendant/respondent on the other hand asserted that they have a right to exercise a statutory power of sale and that the plaintiffs/applicants were not privy to the charge over the suit properties, thus they have no locus standi to challenge the sale and auction of the suit properties. The first order that the plaintiffs/applicants have sought for is a temporary injunction restraining the defendants/respondents from advertising for sale, selling by public auction, disposing of, alienating, transferring, charging, or in any manner dealing with the suit properties. 27. 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. A prima facie case must be one where the plaintiffs/applicants demonstrate that there is a clear and unmistakable right which needs protection, as it was held in the following cases by the court of appeal. In **Mrao Ltd V First American Bank Of Kenya Limited And 2 Others [2003] eKLR** it was held that:- ***“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 to call for an explanation or rebuttal from the latter.”*** 1. Similarly, in **Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR** the court of appeal stated that:- ***“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation.”*** 1. Having carefully analyzed the documents in support of the application, I find that the plaintiffs/applicants have established a prima facie case by exhibiting a copy of the agreement for sale dated 15th June 2012, which was affirmed through the arbitral award dated 9th October 2023, which was adopted as an order of the court in ELC Case no.1190 of 2016 on 31st January 2024. 2. The 2nd element to be satisfied is that the plaintiffs/applicants will suffer irreparable damage that is incapable of being compensated by damages. In the case of **Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR** the court defined irreparable injury as such:- ***“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.......*** ***In conclusion, we stress that it must always be borne in mind that the very foundation of the jurisdiction to issue orders of injunction vests in the probability of irreparable injury, the inadequacy of pecuniary compensation and the prevention of the multiplicity of suits and where facts are not shown to bring the case within these conditions the relief of injunction is not available.”*** 1. In my view, the loss of ownership of property certainly constitutes irreparable injury, and while the 3rd defendant/respondent contends that the injury is capable of being settled by damages, the value of the property may be quantified, but the loss may not be able to be fully accounted for. Also, and I note, that while the 3rd defendant/respondent may hold a valid statutory power of sale, it is in the interest of justice to preserve the suit properties pending the full canvassing of issues for determination, thus the balance of convenience lies in favour of their preservation. 2. The second order sought by the plaintiffs/applicant is an order of inhibition to be registered against the suit properties to prevent any dealings. **Section 68** of the **Land Registration Act** provides as follows:- ***“(1) The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.*** ***(2) A copy of the inhibition under the seal of the court, with particulars of the land, lease or charge affected, shall be sent to the registrar, who shall register it in the appropriate register.*** ***(3) An inhibition shall not bind or affect the land, lease or charge until it has been registered.”*** 1. In the case of **Peter Kariuki Njue v Severina Njira Kithumbu & another [2020] eKLR** the court found:- ***“The purpose of an order of inhibition is to prohibit further dealings with the suit property. The court is thus of the opinion that it has a duty to*** ***preserve any property which is the subject of a dispute to prevent the risk of its alienation before the suit is heard and the rights of the parties conclusively determined. That legal duty was recognized in the case of Shivabhai Patel v Manibhai Patel [1959] EA 907.*** 1. The conditions necessary for grant of an order of inhibition as was concluded in the case of **Japhet Kaimenyi M'Ndutho vs M'ndatho M'Mbwiria(2012)eKLR** are that:- ***“In an application for orders of inhibition, in my understanding, the applicant has to satisfy the following conditions:-*** * 1. ***That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the applicant unless preservatory orders of inhibition are issued.*** 2. ***That the refusal to grant orders of inhibition would render the applicant’s suit nugatory.*** 3. ***That the applicant has arguable case.*** ***The court has power to grant orders of inhibition against a suit land restricting registration of any dealing with suit land for a particular time or until the occurrence of a particular event or generally until further orders.”*** 1. An order of inhibition is issued to preserve any property which is the subject of a dispute to prevent the risk of its alienation before the suit is heard and the rights of the parties conclusively determined. As discussed above, it is in the interest of justice to preserve the suit properties herein as they are, pending the final hearing and determination of the suit. 2. From the above, I find merit in the notice of motion dated 14th January 2026, and I grant the following orders:- 3. ***An order of temporary injunction is hereby issued restraining the defendants/respondents from advertising for sale, selling by public auction, disposing of, alienating, transferring, charging, or in any manner dealing with apartments No.C2 and B4 situated in LR. No. 4858/11 in Kileleshwa.*** 4. ***An order of inhibition is hereby issued directing that the same is registered against apartment C2 and B4 to prevent further any dealings pending the hearing and determination of the suit.*** 5. ***Costs to be in the cause.*** Orders accordingly. **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* *Ms. Oele for the Plaintiff/Applicant* *Mr. Nderi for the 1st & 2nd Defendants/Respondents* *Ms. Cheruiyot for the 3rd Defendant/Respondent*