https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12123

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL & TAX DIVISION** **HCC NO. E788 OF 2024** **TITLE BY WAY OF ORIGINAL CLAIM** **GEORGE NGATIRI..............................................................................PLAINTIFF** **-VERSUS-** **I&M BANK LIMITED..............................................1ST DEFENDANT/APPLICANT** **SUNSHINE CONSTRUCTION COMPANY LTD........................2ND DEFENDANT** **TITLE BY WAY OF COUNTERCLAIM** **I&M BANK LIMITED........................................................PLAINTIFF/APPLICANT** **-VERSUS-** **GEORGE NGATIRI......................................................................1ST DEFENDANT** **SUNSHINE CONSTRUCTION COMPANY LTD.........................2ND DEFENDANT** **BLITZ LOGISTICS LIMITED......................................................3RD DEFENDANT** **WAHOME & AKEDI ADVOCATES............................................4TH DEFENDANT** **RULING** **INTRODUCTION** 1. Before this Court for determination is the Notice of Motion Application dated 9th February 2026, filed by the 1st Defendant/Applicant in the original claim (who is also the Plaintiff/Applicant in the Counterclaim), I&M Bank Limited (hereinafter referred to as "the Bank"). 2. The Application is brought under Sections 1A, 1B & 3A of the Civil Procedure Act; Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules; Sections 55 and/or 56 of the Advocates Act; and the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct (SOPPEC). 3. The Bank seeks the following principal orders: 4. *A temporary injunction restraining the Plaintiff (George Ngatiri) and the 4th Defendant in the Counterclaim (Wahome & Akedi Advocates), either by themselves, their agents, employees, assignees, or through any other persons acting under their authority from placing or causing to be placed any further advertisements, notices, or sign posts in respect of Land Parcel Number I.R 70207 now Nairobi Block 4/210, pending the hearing and determination of this application and the main suit.* 5. *A mandatory injunction directing the Plaintiff and the 4th Defendant to pull down the billboard erected on the suit property warning potential buyers from purchasing the suit property.* 6. *An order directing the 4th Defendant to personally meet the Auctioneer's charges arising from the failed public auction attempts due to the alleged false and misleading advertisements, as well as valuation charges for fresh valuation.* **BACKGROUND** 1. The genesis of this dispute traces back to a charge created over Land Parcel Number Nairobi Block 4/210 (formerly I.R. No. 1870/VI/207) (the "suit property"). 2. The Bank advanced credit facilities to the 3rd Defendant, Blitz Logistics Limited. As security, a first legal charge for **Kshs. 80,000,000.00** was registered over the suit property by the registered proprietor, Sunshine Construction Company Limited (the 2nd Defendant). 3. Following default by the borrower, the Bank commenced the realization of its security by issuing the requisite statutory notices. The Plaintiff, George Ngatiri, subsequently filed suit claiming beneficial ownership of the suit property, averring that he had purchased it from the 2nd Defendant in 2003, and that the subsequent charge to the Bank was fraudulent. 4. The record indicates that on 27th May 2025, this Court (Hon. Justice Visram Aleem) delivered a ruling dismissing an application for injunction by the Plaintiff, holding that the Plaintiff, being neither the registered owner nor the chargor, lacked *locus standi* to injunct the Bank's exercise of its statutory power of sale. 5. The Bank alleges that despite the dismissal of that Application, the Plaintiff, acting through the 4th Defendant (his advocates on record), caused multiple "Caveat Emptor" notices to be published in the Daily Nation newspaper on 24th June 2025, 6th August 2025 and 17th September 2025. 6. Furthermore, the Plaintiff and the 4th Defendant erected a billboard on the suit property warning the public that the property was not for sale and that trespassers would be prosecuted. The Bank avers that these actions frustrated scheduled public auctions and caused the Bank substantial financial loss. **THE PARTIES' SUBMISSIONS** 1. The Application is anchored on the Supporting Affidavit of Lilian Omanji, sworn on 9th February 2026 and the Bank's written submissions. 2. The Bank argues that the advertisements were false, malicious and a deliberate attempt to illegally interfere with its statutory power of sale. 3. The Bank contends that the Plaintiff and the 4th Defendant relied on interim orders issued by the Environment and Land Court (ELC) on 25th April 2024 and 18th July 2024, which the Bank argues had lapsed by operation of law under Order 40 Rule 6 of the Civil Procedure Rules. The Bank further invokes the Court's inherent jurisdiction under Sections 55 and 56 of the Advocates Act to punish the 4th Defendant for professional misconduct. 4. The Application is vehemently opposed by the Plaintiff and the 4th Defendant. The Plaintiff filed a Replying Affidavit sworn on 6th March 2026, while the 4th Defendant filed Grounds of Opposition dated 27th February 2026, along with written submissions. 5. The Respondents contend that the ELC orders restraining any dealings with the property remain fully operative and have never been set aside. The 4th Defendant asserts that it acted lawfully, on the instructions of its client and in faithful discharge of its professional duties to preserve the substratum of the ongoing ELC litigation. They argue that the Bank has failed to meet the strict principles for granting interlocutory injunctions as set out in ***Giella v Cassman Brown & Co. Ltd*** and the higher threshold for mandatory injunctions as established in ***Kenya Breweries Ltd v Washington Okeyo***. 6. Additionally, the 4th Defendant submits that the allegations of professional misconduct and the prayer for personal costs against the Advocates are misplaced, arguing that under the doctrine of exhaustion, such complaints fall squarely within the exclusive jurisdiction of the Advocates Disciplinary Tribunal under Section 60 of the Advocates Act. **ISSUES FOR DETERMINATION** 1. Having carefully considered the Application, the rival affidavits, and the rival written submissions, this Court frames the following issues for determination: 2. *Whether the injunctive orders issued by the Environment and Land Court have lapsed by operation of law.* 3. *Whether the Applicant has established the criteria for the grant of a temporary prohibitory injunction and a mandatory interlocutory injunction.* 4. *Whether the Court can, in these interlocutory proceedings, penalize the 4th Defendant for alleged professional misconduct by condemning it to personally bear auctioneer and valuation costs.* **ANALYSIS AND DETERMINATION** ***Whether the ELC Injunctive Orders Lapsed by Operation of Law*** 1. The Respondents anchor their justification for erecting the billboard and publishing the caveats on the interim orders issued by the ELC on 25th April 2024 and 18th July 2024 in Milimani ELCLC No. E162 of 2024. The Bank, in rebuttal, submits that pursuant to Order 40 Rule 6 of the Civil Procedure Rules, the said orders automatically lapsed after twelve months. 2. Order 40 Rule 6 of the Civil Procedure Rules provides in mandatory terms that: ***"Where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise."*** 1. It is not disputed that the orders relied upon were issued in April and July of 2024. By the time of the disputed publications and the filing of this Application in 2026, a period in excess of twelve months had elapsed. 2. The Respondents have not exhibited any subsequent order from the ELC extending the life of the said injunctions. The mere fact that the orders were expressed to endure pending the hearing and determination of the suit does not exempt them from the statutory guillotine imposed by Order 40 Rule 6. Consequently, I find and hold that the ELC orders relied upon by the Respondents lapsed by operation of law. ***Whether the Applicant is Entitled to Interlocutory Injunctions*** 1. The principles for the grant of an interlocutory injunction are well settled in our jurisdiction, stemming from the locus classicus case of **Giella v Cassman Brown & Co. Ltd [1973] EA 358.** An applicant must establish a prima facie case with a probability of success; demonstrate that they stand to suffer irreparable injury that cannot be adequately compensated by an award of damages; and, if the court is in doubt, it will decide the application on the balance of convenience. 2. In **Titus Gitau Ngugi v Chase Bank Limited & another [2016] KEHC 5914 (KLR)**, the court reaffirmed that these conditions must be strictly adhered to, holding that an attempt to consider other circumstances apart from the laid-down conditions is an exercise in futility if the primary thresholds are not met. 3. Has the Bank established a prima facie case? The Bank is the registered chargee over the suit property. This Court, in a prior ruling by Honourable Justice Visram Aleem on 27th May 2025, conclusively established that the Plaintiff lacks locus standi and any registered proprietary interest to halt the Bank's realization of its security. 4. By consequently erecting a billboard and publishing newspaper notices warning potential buyers to stay away, the Plaintiff and his Advocates are effectively executing a collateral attack on the Bank's crystallized statutory rights and sidestepping the Court's ruling. A prima facie right to exercise a statutory power of sale without unlawful interference has already been established and could only be supplanted by fiat of the Court. 5. On the limb of irreparable injury, the Bank has demonstrated that the continued presence of the billboard and caveat emptor notices actively deters potential buyers. The Bank's ability to recover a debt exceeding Kshs. 98,000,000 (Kenya Shillings Ninety Eight million) is being actively frustrated. 6. While the Respondents argue that the loss is purely financial and thus compensable by damages, the deliberate frustration of a statutory remedy by a party already adjudged to lack locus constitutes an injury that goes beyond mere quantifiable loss; it strikes at the core of the sanctity of registered securities and court orders. The balance of convenience undoubtedly tilts in favor of the Bank, to enable it to exercise its lawful rights without underhand impediment. 7. The Bank also seeks a mandatory injunction to pull down the billboard. I am alive to the higher threshold required for mandatory injunctions. As stated by the Court of Appeal in **Kenya Breweries Ltd v Washington Okeyo [2002] EA 109**, a mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases where the court has a high degree of assurance that at trial it would appear the injunction was rightly granted. The court aptly held: ***“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but in the absence of special circumstances, it will not normally, be granted. However , if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a match on the plaintiff, a mandatory injunction will be granted on an interlocutory”.*** 1. I find that special circumstances exist here. The billboard projects a blatant misrepresentation to the public, purportedly enforcing court orders that have since lapsed by operation of law. Allowing the billboard to stand permits the continuous perpetuation of an illegality and an abuse of the court process. The mandatory order compelling its removal is therefore merited to restore the status quo and the dignity of the law. ***Allegations of professional misconduct against the 4th Defendant*** 1. The Bank seeks a punitive order directing the 4th Defendant (Advocates) to personally bear auctioneer and valuation costs occasioned by the aborted auctions, arguing that their actions constitute professional misconduct and a breach of the SOPPEC. 2. The 4th Defendant has strenuously argued that this Court lacks jurisdiction to entertain these allegations, invoking the doctrine of exhaustion. They rely on the framework of the Advocates Act, asserting that such matters belong to the Advocates Disciplinary Tribunal. 3. While it is true that the Advocates Disciplinary Tribunal holds primary statutory jurisdiction over disciplinary infractions, Sections 55 and 56 of the Advocates Act expressly preserve the inherent jurisdiction of this Court over its officers. Specifically, Section 55 of the Advocates Act stipulates as follows: **“Every advocate and every person otherwise entitled to act as an advocate shall be an officer of the Court and shall be subject to the jurisdiction thereof and, subject to this Act, to the jurisdiction of the Disciplinary Tribunal...”** Section 56 of the Advocates Act provides: **“Nothing in this Act shall supersede, lessen or interfere with the powers vested in the Chief Justice or any of the judges of the Court to deal with misconduct or offences by an advocate, or any person entitled to act as such, committed during, or in the course of, or relating to, proceedings before the Chief Justice or any judge.”** 1. A court cannot be ousted from addressing misconduct committed in connection with proceedings before it. However, the imposition of a personal costs order against an advocate, equivalent to unliquidated damages for third-party auctioneer fees, is a draconian penal measure. 2. Such a remedy requires a substantive hearing where the advocate's personal liability, malice, or fraud is strictly proven, distinct from their client's instructions. 3. At this interlocutory stage, I find that it is sufficient to injunct the 4th Defendant, as agents of the Plaintiff, from continuing the offending publications. The prayer to condemn the 4th Defendant to personally pay the auctioneer and valuation fees is premature and requires a higher evidentiary standard than what is available via affidavit evidence in a Notice of Motion. That specific prayer is therefore declined, without prejudice to the Bank's right to pursue the same at trial or through the appropriate disciplinary forum. **DISPOSITION** 1. In the premises, I find that the Notice of Motion dated 9th February 2026 is largely meritorious. I make the following final orders: 2. ***THAT*** *a temporary injunction is hereby issued restraining the Plaintiff and the 4th Defendant, either by themselves, their agents, employees, assignees, or through any other persons acting under their authority from placing or causing to be placed any further advertisements, notices, or signposts in respect of Land Parcel Number I.R 70207 now Nairobi Block 4/210, pending the hearing and determination of this suit.* 3. ***THAT*** *a mandatory injunction is hereby issued directing the Plaintiff and the 4th Defendant to pull down and remove the billboard erected on the suit property warning potential buyers against purchasing the suit property within Seven (7) days of this order.* 4. ***THAT*** *the prayer directing the 4th Defendant to personally meet the Auctioneer's and Valuation charges is declined at this interlocutory stage.* 5. ***THAT*** *the costs of this Application shall be in the cause.* **IT IS SO ORDERED.** **Dated and delivered at Nairobi this 3Oth Day of JULY 2026.** **BENARD WAFULA MURUNGA** **JUDGE OF THE HIGH COURT** ***Delivered on virtual platform in the presence of:*** ***Kevin Babu - Court Assistant*** ***Ochieng h/b Kigata for the 1st Defendant/Applicant*** ***Onyiego for the Plaintiff/Respondent*** ***Ngayu h/b for Ms Akidi for the 4th Defendant/Respondent***