https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3672

Munywira v Kanyi & another (Environment and Land Case E041 of 2025) [2026] KEELC 3672 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3672 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case E041 of 2025 JO Olola, J June 17, 2026 Between Francis Njau Munywira Applicant and David Mureithi Kanyi 1st Respondent Stanbic Bank Kenya Limited 2nd Respondent Ruling 1.By the Notice of Motion dated 4th April 2025, Francis Njau Munywira (the Plaintiff/Applicant) prays for the following orders:1.Spent;2.Spent;3.That the Honourable Court do issue an order of injunction restraining the Defendant his servants, agents and/or anybody claiming through him from selling, disposing or in any other manner dealing or interfering in any manner howsoever with the suit property known as Sub Division Number 448/IV/MN described as Maisonettes No. 10 pending the hearing and determination of this suit;4.That such further or other order be granted as the Honourable Court may deem just and expedient in the circumstances of this application; and5.That costs of this application be provided for. 2.The application which is supported by an Affidavit sworn by the Plaintiff is premised on grounds that:a.The application has been made without delay;b.The Plaintiff purchased the suit property for valuable consideration from the 1st Defendant;c.The 1st Defendant has charged the suit property to the 2nd Defendant and has failed to pay the loan due to the 2nd Defendant;d.The said charge is prejudicial to the Plaintiff’s right and interest over the suit property;e.Had the 2nd Defendant carried out due diligence, it would not have advanced the 1st Respondent a loan secured with the suit property;f.The Plaintiff was not served with the 90 day Statutory Notice as provided for by law; andg.It is in the interest of justice that the orders sought herein be granted. 3.David Mureithi Kanyi (the 1st Defendant/Respondent) did not file any response to the application. 4.Stanbic Bank Kenya Limited (the 2nd Defendant/Respondent) is however opposed to the application. In a Replying Affidavit sworn on its behalf by its Manager Non-Performing Loans Angela Njeri, the 2nd Defendant avers that this Court has no jurisdiction to handle the suit as it involves the exercise of statutory sale by the Bank in respect of a loan facility advanced to the 1st Defendant in the year 2018. The 2nd Defendant avers that it undertook due diligence which confirmed that the suit property was registered in the name of the 1st Defendant free from any encumbrances. 5.In addition, the 2nd Defendant avers that it engaged Axis Real Estate Limited which undertook valuation of the suit property and that at the time of the site inspection, the suit property was unoccupied. The 2nd Defendant asserts that there is no contractual nexus between the Plaintiff and itself and as such this suit does not disclose any cause of action against itself. 6.The 2nd Defendant further avers that it did serve the 1st Defendant with a 90 day and 40 days’ notice as by law required. It further asserts that the Plaintiff has not satisfied the triple requirements for the grant of a temporary injunction. 7.I have carefully perused and considered both the Plaintiff’s application as well as the response thereto by the 2nd Defendant. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocates representing the parties. 8.By his application before the Court, the Plaintiff prays for a temporary order of injunction restraining the Defendants or anyone claiming through them from selling, disposing or in any manner whatsoever dealing with the suit property pending the hearing and determination of the suit. 9.It is the Plaintiff’s case that he did purchase the property for valuable consideration from the 1st Defendant and that it has since come to his knowledge that the 1st Defendant has charged the suit property to the 2nd Defendant and has defaulted in the loan repayment. It is the Plaintiff’s case that had the 2nd Defendant carried out due diligence, it would not have advanced the 1st Defendant a loan secured with the suit property. 10.On its part, the 2nd Defendant holds that this Court has no jurisdiction to handle the suit. It is the 2nd Defendant’s position that the dispute herein revolves around the Bank’s mandate to exercise its statutory power of sale in respect of a loan facility extended to the 1st Defendant. Accordingly, the 2nd Defendant asserts that the dispute herein can only be herd and determined by the High Court. 11.The Environment and Land Court is established under Article 162 (2) (b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, 2012. The said Section 13 of the Act provides as follows:“(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—a.relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;b.relating to compulsory acquisition of land;c.relating to land administration and management;d.relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; ande.any other dispute relating to environment and land.” 12.In the Samuel Kamau Macharia & Another –vs- Kenya Commercial Bank Limited & 2 Others (2012) eKLR, It was held thus:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.” 13.From my perusal of the Plaint herein dated 4th April 2025, it was apparent that the Plaintiff’s case is premised on a sale agreement between the Plaintiff and the 1st Defendant as executed on 29th October 2015 in regard to Maisonette No. 10, Ivory Court Estate situated on Sub-division No. 448 (Original Number 442/7) Mainland North. The Plaintiff avers therein that despite paying the full purchase price of Kshs. 2,000,000/=, the 1st Defendant has neglected, refused or declined to issue him with a Certificate of Lease thereby breaching the agreement. 14.The Plaintiff avers that on 1st April 2025, the 2nd Defendant placed an advert in the Daily Nation Newspaper advertising its intention to dispose several buildings at Mtwapa and more specifically the property known as Maisonette No. 10 erected and built on the suit property. The Plaintiff subsequently came to learn that two years after they entered into the sale agreement with the 1st Defendant the said 1st Defendant had on 1st August 2017 charged the entire suit property to the 2nd Defendant to secure a loan of Kshs. 38,400,000/=. 15.It is on that basis that the Plaintiff prays for a mandatory order of injunction to compel the 1st Defendant to issue him with a duly registered certificate of title and a permanent order of injunction restraining the 2nd Defendant from interfering with the Plaintiff’s occupation and use of the suit property. 16.As was held by the Court in Suzanne Achieng Butler & 4 Others –vs- Redhill Heights Investments Limited & Another (2016) eKLR:“ 23.When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works. 24.The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse.” 17.In the matter before me, the Plaintiff’s claim is pegged on a sale agreement entered into between himself and the 1st Defendant in the year 2015 and the predominant issue in the given circumstances is the ownership of the said Maisonette No. 10 and not whether or not the 2nd defendant is entitled to exercise its statutory power of sale. 18.Indeed, even if that were the case, it is my view that nothing ousts the jurisdiction of this Court as under Section 13 (2) (d) of the Environment and Land Court cited hereinabove, this Court has jurisdiction to deal with among other things, contracts, choses in action or other instruments granting any enforceable interests in land. 19.It follows that I did not find any basis for the submission that this Court has no jurisdiction to hear and determine the suit herein. 20.Turning to the application before the Court, the Plaintiff has sought for a temporary order of injunction restraining the Defendants or persons claiming under them from disposing, dealing with or interfering with his use and occupation of the suit property pending the hearing and determination of this suit. 21.In respect to temporary injunctions, Order 40 Rule 1 of the Civil Procedure Rules 2010 provides as follows:“Where in any suit it is proved by affidavit or otherwise-a.That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; orb.That the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 22.As the East African Court of Appeal stated in the Case of Giella –vs- Cassman Brown (1973) EA 358:“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally 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.” 23.In Mrao –vs- First American Bank of Kenya Limited & 2 Others (2003) KLR 125, the Court of Appeal defined a prima facie case thus:“…….a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case 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.” 24.In the matter herein, it is the Plaintiff’s case that the 1st Defendant has breached the terms of the sale agreement executed between themselves on 29th October 2015. The Plaintiff asserts that he did discharge his obligations thereunder but the 1st Defendant has failed to perform his part. In support of that position the Plaintiff has annexed a copy of the sale agreement as executed between the parties. 25.Despite service, the 1st Defendant did not file any response to the application. That being the case, the existence of the sale agreement is not in dispute. It is therefore apparent that the Plaintiff has proved a prima facie case with a probability of success. 26.It is also apparent from the Replying Affidavit sworn by the 2nd Defendant that the 1st Defendant has defaulted in servicing the loan facility secured by charging the property to the 2nd Defendant and that the 2nd Defendant had on 1st April 2025 advertised the property for sale. 27.On the issue of irreparable injury, the Court of Appeal in the case of Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others (2014) eKLR held as follows:“On the second factor, 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 facie, 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 stand 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.” 28.The Plaintiff’s averment that upon completion of the units he was in occupation and that he has remained therein to-date has not been disputed. That being the case, I am satisfied that the Plaintiff stands to suffer irreparable harm where the Defendants were to be allowed to evict him and to proceed to alienate the property to third parties. 29.Accordingly, I am persuaded that pending the hearing and determination of this suit, it is only fair and just that a temporary order of injunction be issued to preserve the subject property until then. 30.In the premises I find that the Notice of Motion dated 4th April 2025 has merit and I hereby allow the same in terms of Prayer No. 3 thereof. 31.The Costs shall be in the cause. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 17TH DAY OF JUNE, 2026.…………………………..J.O. OLOLAJUDGEIn the presence of:-Ms. Firdaus Court AssistantNo Appearance for the PlaintiffNo Appearance for the 1st DefendantMr. Wafula Advocate for the 2nd Defendant