https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3154

Mwadumbo t/a Mwadumbo & Company Advocates & another v Soita t/a Soita & Associates Advocates & another (Enviromental and Land Originating Summons E072 of 2025) [2026] KEELC 3154 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEELC 3154 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Enviromental and Land Originating Summons E072 of 2025 MN Kullow, J May 18, 2026 Between Salim Ali Mwadumbo t/a Mwadumbo & Company Advocates 1st Applicant Harvey Natanje 2nd Applicant and Willy Soita t/a Soita & Associates Advocates 1st Respondent Madhur Vedvrat Ramrakha 2nd Respondent Ruling The Application 1.This ruling concerns the Notice of Motion dated 31st October 2025 brought under Sections 1A, 1B and 34 of the Civil Procedure Act, Order 40 Rules 1 and 2, Order 51 Rule 1 of the Civil Procedure Rules, Article 159 of the Constitution and all enabling provisions of the law. The Applicants seek, principally, temporary injunctive orders restraining the Respondents from entering into, levying distress, evicting, or otherwise interfering with the 2nd Applicant’s quiet possession of the premises known as Nairobi/Block 15/323, pending the hearing and determination of the application and the suit. 2.The application is premised on the grounds appearing on its face and is supported by the affidavit sworn by Salim Ali Mwadumbo. The Applicants aver that the 1st Applicant acted for the 2nd Applicant in a conveyancing transaction relating to House No. 41, Kunde Road, Lavington, Nairobi/Block 15/323, while the 1st Respondent acted for the 2nd Respondent, who is said to be the registered owner of the property. 3.It is further averred that the 2nd Applicant has been a lawful tenant of the premises since 2021, paying monthly rent of USD 3,704, and that she has undertaken renovations and developments on the property exceeding USD 80,000 with the owner’s consent. The Applicants also contend that upon the property being offered for sale in 2024, the 2nd Applicant accepted to purchase it and paid a 10% deposit of USD 85,136 together with an additional USD 200,000 towards the purchase price. 4.The Applicants’ case is that despite a professional undertaking dated 23rd September 2025 to release the balance of the purchase price upon receipt of the completion documents, the Respondents have failed to avail the said documents and have instead threatened to evict the 2nd Applicant. They therefore contend that unless the court intervenes, the 2nd Applicant stands to suffer irreparable loss, while no prejudice will be occasioned to the Respondents if the interim protective orders are granted. The Response 5.The application is opposed by the Replying Affidavit sworn by Willy Soita on behalf of the 1st Respondent. The deponent avers that he is an advocate of the High Court of Kenya and acted solely for the 2nd Respondent in the impugned sale transaction. He deposes that upon reading the Notice of Motion and the supporting affidavit sworn by Salim Ali Mwadumbo, he found it necessary to respond thereto. While admitting the contents of paragraphs 1, 2, 3 and 4 of the supporting affidavit, he states that he is a stranger to the allegations contained in paragraph 5 thereof as he was not involved in the arrangements alluded to therein. 6.The 1st Respondent further avers that the parties indeed entered into a sale transaction and exchanged the relevant completion documents through their respective advocates pursuant to the Agreement for Sale dated 10th September 2024. He maintains that his role was limited to acting for the vendor and that he has no personal interest in the suit property beyond his professional engagement as counsel for the 2nd Respondent. He therefore contends that no reasonable cause of action has been disclosed against him to warrant his joinder in the proceedings and urges the Court to dismiss the application as against him with costs. 7.The application is opposed by the Replying Affidavit sworn by Madhur Vedvrat Ramrakha, the 2nd Respondent and the registered proprietor of the suit property known as Nairobi/Block 15/323. The deponent avers that he is well seized of the matters giving rise to the dispute and that the application principally seeks injunctive orders restraining him from levying distress, evicting, or otherwise interfering with the 2nd Applicant’s possession of the suit premises. He states that the 2nd Applicant entered into a tenancy agreement with him in or about 2021 at a monthly rent of USD 3,704, but had consistently defaulted in payment of rent despite repeated indulgence on his part. 8.The 2nd Respondent further avers that although the parties subsequently entered into a Sale Agreement dated 10th September 2024 for the purchase of the suit property, the 2nd Applicant allegedly failed to comply with the terms thereof, including timely payment of the deposit and balance of the purchase price. He contends that the Applicants made irregular payments contrary to the agreed mode of payment and attempted to procure release of completion documents without full settlement of the purchase price. The deponent therefore maintains that the Applicants are in breach of both the tenancy agreement and the sale agreement and have failed to satisfy the principles for grant of an injunction as set out in Giella -Vs- Cassman Brown & Co. Ltd [1973] EA 358. He consequently urges the Court to dismiss the application with costs. Submissions 9.The application was canvassed by way of written submissions. The Applicants submitted that the application dated 31st October 2025 was meritorious and satisfied the legal threshold for the grant of a temporary injunction pending the hearing and determination of the suit. Counsel identified three issues for determination, namely; whether the Applicants had established a prima facie case with a probability of success, whether the Applicants stood to suffer irreparable loss incapable of compensation by damages, and where the balance of convenience lay. In support of their submissions, reliance was placed on the celebrated case of Giella -Vs- Cassman Brown & Company Ltd [1973] EA 358, where the principles governing the grant of interlocutory injunctions were settled. 10.On whether a prima facie case had been established, the Applicants submitted that the 2nd Applicant was a lawful tenant of the suit premises since 2021 and had subsequently entered into a sale agreement with the 2nd Respondent for purchase of the suit property. Counsel argued that despite payment of substantial sums towards the purchase price and continued payment of rent, the Respondents had threatened eviction, thereby infringing upon the Applicants’ rights. Reliance was placed on Mrao Limited -Vs- First American Bank Limited & 2 Others [2003] eKLR, where the Court defined a prima facie case as one disclosing an apparent infringement of a right requiring rebuttal. 11.The Applicants further submitted that the 2nd Applicant would suffer irreparable harm if evicted from what had become her matrimonial home and cited Jephitha Mbaka Murage v Ann Murage Mugo [2013] eKLR, where the Court held that land is unique and damages may not always be an adequate remedy. On the balance of convenience, the Applicants contended that the same tilted in favour of preserving the status quo pending determination of the suit and relied on Kipseba Chumba -Vs- Chairman Board of Management, Kabirisus Primary School [2017] KEELC 3211 (KLR), where the Court held that the balance of convenience favoured preservation of the suit property pending hearing and determination of the dispute. 12.The 2nd Applicant also filed written submissions in support of the application dated 31st October 2025 and in opposition to the Respondents’ replying affidavits. Counsel reiterated that the Applicants had satisfied the conditions for grant of an interlocutory injunction as set out in Giella -Vs- Cassman Brown & Co. Ltd [1973] EA 358 and identified the issues for determination as whether the application was merited, whether the proceedings offended the doctrine of sub judice, and who should bear costs. Reliance was further placed on the decisions in Mrao Ltd -Vs- First American Bank of Kenya Ltd & 2 Others [2003] eKLR, Nguruman Limited -Vs- Jan Bonde Nielsen & 2 Others [2014] eKLR, Paul Gitonga Wanjau -Vs- Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR, and Kenya National Commission on Human Rights -Vs- Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] KESC 54 (KLR). 13.The 2nd Applicant submitted that she had demonstrated a clear legal and equitable interest in the suit property arising from her long-standing tenancy, the executed sale agreement, and the substantial sums allegedly paid towards the purchase price. Counsel argued that the threatened eviction would occasion irreparable harm as the suit property constituted the 2nd Applicant’s residence and matrimonial home into which she had invested heavily through renovations and developments. 14.It was further submitted that the balance of convenience favoured preservation of the status quo pending determination of the suit. On the issue of sub judice, counsel maintained that the proceedings before the Rent Restriction Tribunal related to landlord-tenant disputes concerning rent and quiet possession, whereas the present suit concerned enforcement of a professional undertaking and completion documents arising from the conveyancing transaction. The Court was therefore urged to find that the doctrine of sub judice was inapplicable and to allow the application as prayed. 15.In response, the 2nd Respondent submitted that the Applicants had failed to satisfy the principles governing the grant of interlocutory injunctions as set out in Giella -Vs- Cassman Brown & Co. Ltd [1973] EA 358 and reaffirmed in Nguruman Limited -Vs- Jan Bonde Nielsen & 2 Others [2014] eKLR. Counsel argued that the Applicants had failed to establish a prima facie case as the 2nd Applicant remained in persistent rent arrears, had not completed payment of the purchase price under the Sale Agreement dated 10th September 2024, and had allegedly breached the terms of both the tenancy agreement and the sale agreement. 16.It was further submitted that partial payment of the purchase price did not confer any proprietary or equitable interest capable of protection by way of injunction and reliance was placed on Mrao Ltd -Vs- First American Bank of Kenya Ltd & 2 Others [2003] eKLR. 17.The 2nd Respondent further submitted that the Applicants had failed to demonstrate irreparable harm as any alleged loss arising from renovations, rent, or the sale transaction was quantifiable and compensable by damages. Counsel contended that the balance of convenience tilted in favour of the 2nd Respondent as the registered proprietor of the suit property who continued to suffer prejudice through loss of rent, deprivation of possession, and delayed completion of the transaction. 18.It was also submitted that the Applicants had approached the Court with unclean hands by instituting parallel proceedings before the Rent Restriction Tribunal while simultaneously pursuing similar reliefs before this Court, thereby offending the doctrine of sub judice and amounting to an abuse of the court process. In support of those arguments, reliance was placed on Muchanga Investments Limited -Vs- Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, Kenya National Commission on Human Rights -Vs- Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] KESC 54 (KLR), and Midland Construction Co. Ltd. -Vs- I & M Bank Ltd & Another [2023] KEHC 25735 (KLR) among other authorities. Analysis and Determination 19.In the Court’s considered view, the sole issue arising for determination is: Whether the Applicant has met the threshold for the grant of the temporary injunctive orders sought. 20.The law governing grant of interlocutory injunctions is set out under Order 40 Rule 1 (a) and (b) of the Civil Procedure Rules 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 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.” 21.The principles for grant of injunction are well settled by the locus classicus of Giella -Vs- Cassman Brown & Company Limited [1973] E.A. 358., where the court stated thus: “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.” 22.Further In Nguruman Limited -Vs- Jan Bonde Nielsen & 2 others [2013] KECA 347 (KLR) the Court of Appeal had this to say on prima facie case;“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” 23.Applying the foregoing principles to the present application, the Court notes that it is not disputed that the 2nd Applicant has been in occupation of the suit premises since 2021, initially as a tenant and subsequently as an intended purchaser pursuant to the Sale Agreement dated 10th September 2024. It is also not contested that the parties entered into a sale transaction in respect of the suit property and that substantial sums were remitted towards the purchase price. 24.The Applicants contend that despite the existence of the said agreement and the payments allegedly made thereunder, the Respondents have threatened eviction and declined to furnish the completion documents necessary to facilitate completion of the transaction. On the other hand, the Respondents maintain that the Applicants are in breach of both the tenancy agreement and the sale agreement by reason of persistent rent arrears, failure to pay the balance of the purchase price within the stipulated timelines, and non-compliance with the agreed mode of payment. 25.At this interlocutory stage, the Court is not called upon to make definitive findings on the contested factual and contractual issues raised by the parties. The duty of the Court is merely to determine whether the Applicants have demonstrated a right requiring protection pending the hearing and determination of the suit. From the material placed before the Court, it is evident that there exists an executed sale agreement between the parties, that the 2nd Applicant remains in possession of the suit premises, and that disputes have arisen regarding completion of the transaction and the parties’ respective obligations thereunder. 26.In the Court’s view, those circumstances disclose a genuine and arguable dispute deserving interrogation at a full hearing and consequently satisfy the threshold of a prima facie case as defined in Mrao Ltd. -Vs- First American Bank of Kenya Ltd & 2 Others [2003] eKLR. 27.On whether the Applicants stand to suffer irreparable harm, the Court notes that the orders sought are intended to preserve the 2nd Applicant’s continued possession of the suit premises pending determination of the suit. The 2nd Applicant avers that she has occupied the premises as her residence for several years and has undertaken substantial renovations and improvements thereon. If eviction or distress were to issue before the dispute surrounding completion of the sale transaction is heard and determined, the substratum of the suit would be fundamentally altered. 28.In the circumstances, the Court is persuaded that the Applicants have demonstrated the likelihood of suffering injury that may not be adequately compensable by an award of damages alone. 29.Even assuming doubt existed on the first two limbs, the balance of convenience would in any event tilt in favour of preserving the prevailing status quo pending the hearing and determination of the suit. The Court is guided by the principle that where disputes concern possession and competing claims over immovable property, it is prudent to preserve the property and maintain the existing state of affairs until the rights of the parties are conclusively determined upon hearing evidence. The justice of the matter therefore demands that the suit property be preserved pending the determination of the substantive dispute between the parties. Final Disposition 30.Consequently, having carefully considered the Notice of Motion application dated 31st October 2025, the affidavits on record, the rival submissions by counsel, and the applicable law, the Court is satisfied that the Applicants have met the threshold for the grant of a temporary injunction pending the hearing and determination of the suit. The Court accordingly finds the application to be meritorious. 31.Accordingly, the Court hereby allows the application dated 31st October 2025 and makes the following orders: -a.A temporary injunction be and is hereby issued restraining the Respondents, whether by themselves, their servants, agents, employees or any person acting under their authority, from entering into, levying distress, evicting, or in any manner whatsoever interfering with the 2nd Applicant’s quiet possession of the premises known as Nairobi/Block 15/323 pending the hearing and determination of this suit.b.The costs of the application shall abide the outcome of the main suit.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 18TH DAY OF MAY, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Munguti for 1st ApplicantMr. Mwangi for 2nd ApplicantN/A for 1st RespondentMs. Lewinsky for 2nd RespondentPhilomena W. Court Assistant