https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8662

Ngige v Muiruri & another (Commercial Case E131 of 2025) [2026] KEHC 8662 (KLR) (Commercial and Tax) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8662 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E131 of 2025 JWW Mong'are, J June 19, 2026 Between Eliud Wanjao Ngige Plaintiff and Joseph Murori Muiruri 1st Defendant Family Bank Limited PLC 2nd Defendant Ruling Introduction and Background 1.By the Notice of Motion dated 25th February 2025, the Plaintiff (Eliud) seeks a temporary injunction to restrain the 2nd Defendant (“the Bank”) from selling, auctioning, or disposing of the property Kiine/Sagana/3187 (“the suit property”) pending the hearing and determination of the suit. He also seeks a Mareva injunction to restrain the 1st Defendant (Joseph) from selling or disposing of any of his other assets to prevent him from frustrating a future judgment. Eliud further seeks orders to compel Joseph to provide a full list of his bank account statements from 2020 to date and all his assets both local and foreign; to freeze the bank accounts held by the Joseph in Kenya and to compel the Bank to provide full financial disclosure on how the loan granted to Joseph by the Bank was handled and why the suit property was allowed to be sold without enforcing loan repayment. 2.The application is supported by the grounds on its face and the affidavits of Eliud sworn on 25th February 2025 and 24th March 2025. The Bank opposes the application through the replying affidavit of its Legal Manager, Sylvia Wambani, sworn on 6th March 2025. The application was canvassed by way of written submissions which are on record and which together with the pleadings I have considered and I will be making relevant references to in my analysis and determination below. Analysis and Determination 3.From the parties’ submissions, I find that the issues for determination are as follows:a.Whether the injunctive orders ought to be grantedb.Whether the Mareva injunction should be issuedc.Whether an order of disclosure should be issued in respect of the loan and Joseph’s bank accounts and assets Injunction orders 4.The parties agree that for Eliud to obtain the injunctive orders that he seeks, he must demonstrate that he has a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt show that the balance of convenience is in his favour (See Giella v Cassman Brown & Co., Ltd. [1973] E.A. 358). It is also correct as per the Bank’s submissions that in Nguruman Limited v Jan Bonde Nielsen& 2 others [2013] KECA 347 (KLR), the Court of Appeal reiterated these conditions and further clarified that they are to be applied as separate, distinct and logical hurdles which an applicant is expected to surmount sequentially. This means that if the applicant does not establish a prima facie case, then irreparable injury and balance of convenience do not require consideration. On the other hand, if a prima facie case is established, then the court will consider the other conditions. 5.As to what constitutes a prima facie case, the parties are also spot on to submit that the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) explained that it is, “….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.” Eliud’s position, as set out in his pleadings is that he is the registered owner of the suit property and claims that the Bank fraudulently used the property as security for a loan facility of Kshs.30,000,000.00/= granted to Joseph in 2020, without his consent. He alleges his signature and his wife’s signature on the facility documents were forged. 6.He avers that he initially agreed to guarantee the loan but withdrew but the Bank proceeded by forging his signature and his wife's signature on the Letter of Offer and Spousal Consent document. That without his knowledge, the Bank extended an additional Kshs.3,000,000.00/= to Joseph using the suit property and that the loan was meant to purchase a property in Thika but that transaction never existed and that the Bank released funds directly to Joseph instead of the seller. Eliud further claims that Joseph sold one of his own securities for Kshs.16,000,000.00/=, but only Kshs.8,000,000.00/= went toward the loan repayment and that this was done with the Bank’s connivance. He adds that the statutory notices issued by the Bank were either post-dated, backdated, or omitted a further fraudulent Kshs.3,000,000.00/= facility. 7.In response, the Bank depones and agrees that Joseph applied for the Kshs.30,000,000.00/= loan facility and claims that Eliud agreed to act as guarantor and provided the suit property as security. That a third-party charge was registered against the suit property on 23rd September 2020 for Kshs.22,000,000.00/=, that Eliud executed a Deed of Guarantee and Indemnity on 8th September 2020 and that a further loan of Kshs.3,000,000.00/= was advanced to Joseph in April 2023 to consolidate an existing overdraft. 8.The Bank further claims that Eliud and Joseph signed an addendum on 19th June 2023 allowing the Bank to release one of the other securities, that is the Thika property, for sale, with proceeds going to reduce the loan. That Joseph defaulted and the outstanding balance as of 3rd March 2025 is Kshs.17,479,923.62/= and that the Bank issued all required statutory notices and served them by way of registered post. The Bank states that it obtained a professional valuation of the suit property on 26th February 2025 which returned a forced sale value of Kshs.30,000,000.00/=. 9.The Bank denies all forgery allegations and states that as far as the Bank is concerned, the Letter of Offer was duly signed by Eluid and the Bank argues he has provided no proof of forgery and has not initiated any criminal proceedings regarding the alleged forgery. The Bank denies receiving Eliud’s complaint emails or being visited by him and it states there is no proof of record. The Bank notes that the "affidavit of marriage" attached by Eluid was sworn by a person named JANE NYANGO WANJAO who was purportedly his spouse, suggesting Eliud’s wife did provide consent. The Bank states the sale of the Thika property had nothing to do with the Bank and was allowed through the signed addendum. 10.As such, the Bank states the application should be dismissed because Eliud has failed to demonstrate any fraud or forgery with evidence, he has not shown that he will suffer irreparable harm if the injunction is not granted and that the balance of convenience tilts in favour of the Bank, which is trying to recover its money, not in favour of Eliud. It asserts that it followed all procedures under the Land Act, including service of all required notices and thus prays that the Eliud’s application be dismissed with costs. 11.In making this determination, I am cognizant of the fact that at this stage, the court can only make a prima facie finding whose conclusiveness will be determined at trial. The court cannot conduct a mini trial and make a conclusive finding based on the affidavit evidence before it. It is at the trial and main hearing stage that the parties can impeach the veracity and credibility of the documents on record. This position was fortified by the Court of Appeal in Patrick Okuku & 7 others v James Kutsushi Atindo & 8 others [2016] KECA 580 (KLR) where it was held that serious allegations of fraud and other wrong doing can only be decided during a proper trial and not on the basis of conflicting affidavit evidence. 12.However, in this case, Eluid, in his supplementary affidavit, annexed a detailed forensic report from Shield Forensics International Limited. While the Bank criticizes the report for relying on low-resolution scans and rendering some findings inconclusive, I find the report is definitive that the Loan Facility Letters dated 29th July 2020 and 8th April 2023 are forgeries. The report also finds the spousal consent and affidavit of marriage to be forgeries. This is direct and scientific evidence that establishes, at least on a prima facie basis, that the foundation of the charge is fraudulent. The Bank did not provide an affidavit from any advocate or bank officer who witnessed Eliud sign these documents and this absence is a significant gap in the Bank's evidence, as standard banking practice requires a signatory to appear in person and this bolsters Eliud’s claim that he never participated in the execution of the documents. 13.Therefore, whereas the court is not to conduct a mini-trial, it must also assess whether the material presented calls for an explanation from the Bank. The Bank's explanation that the signatures are genuine and that the forensic report is flawed is rebutted by the forensic expert's detailed analysis of specific, missing signature characteristics such as the "double-loop initiation" and "fence-like vertical bars". In the end, I find that Eliud has clearly demonstrated a right of ownership of the suit property has been or is threatened to be infringed by a document that a qualified expert states is a forgery. 14.Eliud has also presented compelling evidence of suspicious timing. The Kshs.3,000,000.00/= loan was disbursed on 28th April 2023, but the addendum allegedly permitting its terms was dated 19th June 2023 which is almost two months later and strongly suggests the loan was executed and disbursed before the guarantor's purported consent was obtained. It is also clear that the 90-day statutory notice is postdated as it is dated 29th June 2024 but was received on 30th April 2024 and the 40-day notice dated 1st October 2025 also appears backdated. This demonstrates a careless or willful disregard for proper legal Procedure, supporting Eliud’s claim of bad faith. 15.I therefore find that Eliud’s case meets the Mrao(supra) standard and I find that he has established a prima facie case of fraud and forgery, primarily through the forensic handwriting report and the procedural irregularities detailed in his evidence which calls for a rebuttal from the Bank that has not been given. As per the dicta in Nguruman(supra), I will move to establish if he has satisfied the other conditions for the grant of an injunction. 16.On irreparable injury, while the Bank correctly submits and states that a charged commercial asset's loss is usually compensable by damages, this principle applies to a prima facie valid charge. The Plaintiff's case is that the charge is void ab initio due to fraud. If the suit property is sold and the Court later finds the charge to be a forgery as the forensic report suggests, the Plaintiff will have lost his property based on an illegal act. An award of damages against a potentially judgment-proof Joseph, who the Bank itself describes as a "defaulting borrower" and the Bank, which may argue it acted in good faith), would not be an adequate remedy for the loss of the suit property. The loss, in this context, is not purely commercial but a loss of title based on a criminal act. 17.Furthermore, Eliud’s claim that the suit property has sentimental value, while not the strongest argument, is strengthened by the wife's affidavit confirming it is their matrimonial home. Therefore, it is my finding that the potential loss of the suit property based on a forged charge is precisely the kind of irreparable injury an injunction is designed to prevent and damages would be a poor and uncertain substitute. 18.On the balance of convenience, I find that it strongly favours granting the injunction. For Eliud, the convenience is maintaining the status quo and keeping his property while the Court determines the validity of the charge and I find that the harm of an unlawful, irreversible sale is immense. For the Bank, its convenience lies in realizing its security to recover a defaulting loan. However, this convenience is significantly undermined by the serious allegations of forgery and procedural misconduct. The legal maxim "he who comes to equity must come with clean hands" is relevant here and the Bank's own conduct of issuing postdated and backdated notices and the suspicious addendum timeline taints its claim to equitable relief. 19.In the upshot, a temporary injunction simply preserves the suit property and does not extinguish the Bank's right to pursue Joseph or to re-apply for the sale of the suit property if the forgery claim is ultimately dismissed at trial. The inconvenience to the Bank of a delay is far outweighed by the potential for a gross miscarriage of justice against Eluid. I therefore grant Prayer 4 of the application, temporarily restraining the Bank from selling or disposing of the suit property pending the hearing and determination of the suit. Mareva Injunction 20.In Zakhem International Construction Limited & another v Oilfields Engineering and Supplies Limited & another; Kenya Pipeline Company Ltd (Intended Interested Party) [2023] KEHC 21842 (KLR), the court (Dr. Mugambi J.,) explained and set out the effect of a Mareva injunction as follows:18.The Halsbury Laws of England 3rd Edition Vol. 3 [1] page 329 to 331 defines a Mareva injunction as:“An order of the court restraining a party to proceedings from removing from the jurisdiction of the court, or otherwise dealing with assets, located within that jurisdiction and in more limited circumstances from dealing with assets located outside, the jurisdiction.”19.On the purpose and application of Mareva injunctions, Lord Denning in the locus classicus case of Mareva Campania Naviera SA V International Bulkcarriers SA [1980] 1 All E.R. 213 stated as follows at page 215:“… that principle applies to a creditor who has a right to be paid the debt owing to him, even before he has established his right by getting judgment for it. If it appears that the debt is due and owing, and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets.” (emphasis mine).20.In Fourie v Le Roux & Ors [2007] UKHL 1 at Para 2, [2007] 1All ER 1087, Lord Bingham also observed that:“Mareva (or freezing) injunctions …are granted to protect the efficacy of court proceedings, domestic or foreign.”21.The position is further captured in the Halsbury’s Laws of England (supra) to the extent that:“The foundation of the court’s jurisdiction is the need to prevent judgments of the court from being rendered ineffective, whether by the removal of the defendant’s assets from the jurisdiction, or by dissipation.”22.The preventive and anticipatory character of injunctive orders is also captured under Order 40 of the Civil Procedure Rules 2010. Rule (1)(b) particularly provides that if:“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.” 21.It can therefore be stated that for a mareva injunction to be granted, the subject asserts must be located within the court’s jurisdiction, it is a applicable to a creditor who has a right to be paid a debt owing to them, there is a danger that the debtor may dispose of the assets so as to defeat it before judgment and the same is issued to prevent the debtor from disposing of those assets and to protect the efficacy of court proceedings. 22.Eliud has shown that Joseph sold one property and moved his banking to another bank. However, there is very little evidence presented at this point about his current assets or an immediate and specific plan to dissipate them to frustrate a future judgment. As stated above, a Mareva injunction is a draconian remedy, and courts require a high degree of proof of an imminent risk of asset dissipation. The main suit has not been heard and the debt to Eliud if any, is not liquidated and Eluid is actually seeking to avoid paying a debt. The primary purpose of a Mareva is to prevent a known debtor from hiding assets after a right to payment has been established or is strongly arguable. In this case, Eliud’s claim against Joseph is for fraud and collusion, not for a specific sum of money owed to him by Joseph. 23.I therefore find that this prayer is premature and hold that the general allegations of past conduct are insufficient to justify freezing Joseph’s unknown and unparticularized assets in an interlocutory application. Disclosure of Assets and Bank Statements 24.The court’s power to issue an order for discovery and/or disclosure is provided for under section 22(a) of the Civil Procedure Act as follows:Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party—make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; 25.The aforementioned provision grants the court wide discretionary powers in an application for discovery, inspection and production of documents. In Concord Insurance Co. Ltd v NIC Bank Ltd [2013] KEHC 3571 (KLR) the late Havelock J., was faced with a similar application and stated as follows:“According to Black’s Law Dictionary, 7th Edition, discovery is defined as;“The disclosure by the defendant of facts, titles, documents, or other things which are in his exclusive knowledge or possession, and which are necessary to the party seeking the discovery as a part of a cause or action pending or to be brought in another court, or as evidence of his rights or title in such proceeding”. (Underlining mine).It follows that in an application for discovery, a party has to ensure that the documents sought are “necessary” to the cause of action before or pending trial before the Court. It has to be a disclosure of relevant facts to the matters in issue. According to Halsbury’s Laws of England, Volume 13 para 1, the learned authors detail;“The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their relevant cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial. Each party is thereby enabled to see before the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him, to eliminate surprise at or before the trial relating to the documentary evidence and to reduce the cost of litigation.” 5.Discovery is therefore limited solely to the matter in contention. The Court, in exercise of its discretion to issue such orders as to discovery, will be guided by the relevance of the documents that the applicant seeks, in relation to the pleadings. The authors in Halsbury’s (supra) at para 38 write:“Relevance must be tested by the pleadings and particulars and when particulars have been served which limit a particular issue then discovery on that issue is limited to the matter raised in the particulars.” 26.I am in agreement with the Bank’s submissions that discovery is usually more appropriate after the close of pleadings. The Bank has already provided the relevant documents including Letters of Offer, the Charge, the Guarantee, the Addendum, statements and statutory notices. The Plaintiff's prayer for a sweeping order on "how the loan was handled" is too vague and intrusive at this stage, seeking to delve into internal bank processes and privileged information. On the disclosure of Joseph’s assets and accounts, I find this to be even more problematic. The Plaintiff is seeking an order for extensive, pre-trial discovery against a co-defendant with whom he has no direct contractual relationship. Such a broad order to compel a defendant to list all assets and bank statements for a five-year period is highly intrusive and disproportionate and reeks of a fishing expedition. The proper way to obtain this information, if relevant, would be through interrogatories or a notice to produce in the normal course of pre-trial proceedings after Joseph has entered an appearance and filed a defense. I therefore decline this prayer. Conclusion and Disposition 27.The upshot is that the Plaintiff’s application dated 25th February 2025 is allowed to the extent that an injunction be and is hereby issued restraining the Bank from selling or disposing of the suit property pending the hearing and determination of this suit. The Bank shall bear half the costs of this application. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE 2026............................................................................J.W.W. MONGAREJUDGEIn The Presence OfMs. Kariuki for the Plaintiffs/Applicants.Ms. Kimathi for the 2nd Defendant/Respondents.Amos - Court Assistant