Omar v Raha Breeze Properties Ltd & 5 others (Environment and Land Case E064 of 2026) [2026] KEMC 148 (KLR) (25 June 2026) (Ruling)

Omar v Raha Breeze Properties Ltd & 5 others (Environment and Land Case E064 of 2026) [2026] KEMC 148 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEMC 148 (KLR) Republic of Kenya In the Mombasa Law Courts Environment and Land Case E064 of 2026 EM Mwamuye, SRM June 25, 2026 Between Muna Salim Omar Plaintiff and Raha Breeze Properties Ltd 1st Defendant Atasi Jeilani Abdulkadir 2nd Defendant Mohamed Abdulkadir 3rd Defendant Sheikh Abdulkadir 4th Defendant Gulf African Bank Ltd 5th Defendant Trevo Auctioneers 6th Defendant Ruling IntroductionBefore Court are two applications: 1.The Plaintiff's Notice of Motion dated 16th April 2026 seeking principally a temporary injunction restraining the intended sale of the Plaintiff's apartment situated on Plot No. Mombasa/Block XVII/1282, cancellation of the charge registered against the property, refund of the purchase price of Kshs. 5,200,000/= and ancillary reliefs. 2.The 5th Defendant's Notice of Motion dated 29th April 2026 seeking striking out of the suit and the Plaintiff's application on grounds that the proceedings constitute an abuse of court process arising from previous suits allegedly filed over the same subject matter. 3.The applications were canvassed through affidavits and written submissions. Background 4.The Plaintiff contends that she purchased a rooftop apartment erected on Plot No. Mombasa/Block XVII/1282 from the 1st and 2nd Defendants. She maintains that she entered into a sale agreement on 29th December 2020, paid the entire purchase price of Kshs. 5,200,000/= by 13th June 2021 and thereafter took possession of the apartment. 5.Her case is that at the time of purchase there was no disclosed encumbrance on the property and that she only learnt of the intended auction after auction notices were issued by the 6th Defendant acting on instructions of the 5th Defendant. 6.The Plaintiff contends that her equitable purchaser's interest crystallized before registration of the Bank's charge and that the charge cannot defeat her rights. 7.The 5th Defendant opposes the application and contends that: It advanced a Kshs. 15,000,000/= facility to Raha Breeze Properties Limited. A charge over Mombasa/Block XVII/1282 was registered on 21st September 2021. The borrower defaulted. Statutory notices were issued. The Plaintiff acquired no registrable interest capable of defeating the Bank's registered charge. The Plaintiff had previously filed ELC No. E006 of 2026 and subsequent proceedings and therefore the present suit constitutes forum shopping and abuse of court process. Issues for Determination 8.The Court identifies the following issues:i.Whether the suit should be struck out for abuse of court process.ii.Whether the Plaintiff has established a basis for grant of an interlocutory injunction.iii.Whether the prayers for cancellation of the charge, refund of the purchase price and surrender of passports can be granted at this stage.iv.Costs. Whether the Suit should be Struck Out 9.The law regarding striking out of pleadings is settled. The jurisdiction is draconian and must be exercised sparingly. A court should only strike out a suit where it is plainly hopeless, frivolous, vexatious or otherwise an abuse of process. 10.The 5th Defendant relies on the existence of ELC No. E006 of 2026 and subsequent proceedings. 11.The material placed before Court demonstrates that ELC No. E006 of 2026 involved several apartment purchasers including the present Plaintiff. It is also not disputed that Hon. Justice Antony Ombwayo found that the dominant issue concerned enforcement of a charge and exercise of statutory power of sale and consequently declined jurisdiction and transferred the matter. 12.Importantly, the material before this Court does not show that the merits of the Plaintiff's proprietary claim were finally adjudicated. No court has been shown to have conclusively determined: Whether the Plaintiff purchased the apartment. Whether she paid the purchase price before creation of the charge. Whether she acquired an equitable interest. Whether her possession constituted constructive notice. Whether such interest, if established, can override or affect the Bank's rights. 13.The previous proceedings terminated on jurisdictional grounds. The doctrine of res judicata therefore does not arise. 14.Similarly, while the procedural history ought to have been disclosed fully, I am not persuaded on the material before me that the present proceedings constitute such abuse of process as would justify the drastic remedy of striking out. 15.The questions raised are substantial and require evidentiary interrogation. I therefore decline to strike out the suit. The 5th Defendant's application dated 29th April 2026 consequently fails. Whether the Plaintiff has Established a Case for Interlocutory Injunction 16.The applicable principles remain those in Giella v Cassman Brown, namely: Existence of a prima facie case with probability of success. Likelihood of irreparable injury. Balance of convenience. 17.Prima Facie Case- The Plaintiff has exhibited material showing: An alleged purchase transaction. Payment of purchase price. Possession and occupation. A contention that payment was completed before registration of the charge. 18.The Bank, on the other hand, disputes the chronology and contends that the Plaintiff's sale agreement arose after registration of the charge. 19.The Court notes a significant factual dispute emerging from the material: The Plaintiff's further affidavit states that: Sale agreement was entered into on 29th December 2020. Payment was completed on 13th June 2021. The Bank however relies on documents suggesting a sale agreement of March 2022.That contradiction can only be resolved through production of original sale agreements, payment records, land records and viva voce evidence. 20.The Court is not required at this stage to conclusively determine priority of interests. The Court need only determine whether there exists a genuine and arguable claim. I am satisfied that the Plaintiff has Established a prima facie case. 21.Irreparable Injury- The Plaintiff is in possession of the apartment and contends that it is her residence. If the auction proceeds and the property is sold to third parties, the Plaintiff's possession may be permanently disturbed before the substantive issues are heard. 22.While the Bank argues that damages would suffice, the dispute concerns a specific residential apartment occupied by the Plaintiff. 23.Loss of possession pending trial may not be adequately compensated by damages alone. I therefore find that the Plaintiff has demonstrated the likelihood of irreparable prejudice. 24.Balance of Convenience- The Plaintiff is currently in possession. The Bank's interest is financial and secured by a registered charge. Preserving the property pending determination of the competing claims causes less prejudice than allowing a sale which may irreversibly alter the subject matter of the litigation. The balance of convenience therefore tilts in favour of preservation of the status quo. 25.Cancellation of the Charge- The Plaintiff seeks cancellation of the charge registered on 21st September 2021. Such a prayer is final in nature. The validity or otherwise of the charge depends on determination of contested facts and legal issues including: Priority of interests. Validity of registration. Effect of alleged purchaser's rights. Rights of the chargee. These matters cannot be determined at an interlocutory stage. The prayer for cancellation of the charge is therefore declined at this stage and shall await trial. 26.Refund of Kshs. 5,200,000/=- The Plaintiff also seeks refund of the purchase price. That relief is substantive and final. Liability has not yet been established against the 1st to 4th Defendants.The Court cannot determine contractual liability without a full hearing.That prayer is therefore declined at this interlocutory stage. 27.Surrender of Passports- The Plaintiff seeks orders compelling the 2nd , 3rd and 4th Defendants to deposit their passports in Court. No sufficient evidential basis has been laid demonstrating: Intention to abscond; Flight risk; Conduct warranting restriction of movement. Such orders affect constitutional rights and cannot be granted on mere apprehension. The prayer is declined. Disposition 28.Accordingly, the Court makes the following orders:i.On the 5th Defendant's Application dated 29th April 2026- The application seeking striking out of the suit is dismissed. The issue of costs shall abide the outcome of the main suit.ii.On the Plaintiff's Application dated 16th April 2026- A temporary injunction is hereby issued restraining the 5th and 6th Defendants, whether by themselves, agents, servants or auctioneers, from selling, transferring, disposing of, alienating or otherwise dealing with the Plaintiff's apartment erected on Plot No. Mombasa/Block XVII/1282 pending hearing and determination of the suit. The prayer for cancellation of the charge is declined at this stage. The prayer for refund of Kshs. 5,200,000/= is declined at this stage. The prayer seeking deposit of passports by the 2nd, 3rd and 4th Defendants is declined. Costs of the Plaintiff's application shall be in the cause.iii.Pre-trial directions- Given the nature of the dispute and the competing claims concerning priority of interests, possession, constructive notice and validity of the charge, this matter shall be set down for expedited hearing on priority basis.It is so ordered. DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 25TH JUNE 2026.………………………..**HON.E.M. MWAMUYESENIOR RESIDENT MAGISTRATE