https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9701

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **COMMERCIAL CASE NO. E334 OF 2026** **OMWANZA NYAMWEYA AND** **AREBA OMWOYO T/A OMWANZA &** **AREBA ASSOCIATES.………………………………………….1ST PLAINTIFF** **IVY ATEKO INGATI……………………..……………….…….2ND PLAINTIFF** **VERSUS** **UNITED BANK OF AFRICA, KENYA** **(UBA KENYA BANK) LIMITED..……………….…………….…DEFENDANT** **RULING ON THE APPLICATION DATED 21ST MAY 2026** **Introduction and background** 1. By an application brought under sections 1A, 1B, 3, 3A, and 63(e) of the Civil Procedure Act,and Order 39, Rules 5–7 and Order 40, Rules 1–2 of the Civil Procedure Rules, the Plaintiffs seek an order directing the Defendant to furnish security for the decree that may be passed against it, totaling Kshs. 74,300,000.00 and an order of mandatory injunction compelling the Defendant to open a joint account with the advocates for both parties and deposit the total sum of Kshs. 74,300,000.00 within 14 days. 2. This application is supported by the grounds set out on its face and the affidavits sworn by both Plaintiffs on 21st May 2026. The Defendant opposes the application through the replying affidavit of its Head of Legal & Company Secretary, Micky Matheka sworn on 3rd June 2026. The application was orally argued by the parties’ advocates, Mr. Havi, SC and Mr. Muchoki and I have considered their arguments together with the pleadings which I will make relevant references to in my analysis and determination. **Analysis and determination** 1. The order for security is grounded under **Order 39 Rule 5** of the **Rules** which provides as follows: *5. (1) Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him -* *(a) is about to dispose of the whole or any part of his property;* *(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.* *(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.* *(3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.* 1. The principles to be followed when considering such a prayer were laid out by the Court of Appeal in **Kuria Kanyoko t/a Amigos Bar and Restaurant v Francis Kinuthia Nderu, Helen Njeru Nderu and Andrew Kinuthia Nderu [1988] 2 KAR 1287-1334** as follows: *The power to attach before judgement must not be exercised lightly and only upon clear proof of the mischief aimed at by order 38, Rule 5, namely that the Defendant was about to dispose of his property or to remove it from the jurisdiction with intent to obstruct or delay any decree that may be passed against him.* 1. In **Shivam Enterprises Limited v Vijaykumar Tulsidas Patel T/A Hytech Investments [2006] KEHC 257** , Kasango J., amplified the requirements of proof under the subject rule and observed as follows: *That a party would need to meet that high standard of proof before a party is ordered to supply security for the amount claimed. The jurisdiction that the Plaintiff invoked has to be appropriately exercised to ensure that a party meets the aforestated high standards. It ought to always be remembered that the purpose of that jurisdiction is to secure the Plaintiff against the Defendants act aimed at defeating judgment that may be entered. It is however not the intention of that jurisdiction to harass or to punish the Defendant before judgment is entered against him.* 1. It is clear from the decisions above that the threshold for granting the orders sought by the Plaintiffs is high and the court should grant the orders sparingly. The burden rests on the Plaintiffs to establish that the Defendants are about to dispose of the whole or any part of his property or they are about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. 2. The Plaintiffs aver that the Defendant is a company wholly owned by foreigners and that the Defendant has acted in a manner indicating an intention to delay, avoid, or obstruct payment. That the Plaintiffs have suffered and will continue to suffer irreparable injury and loss if the Defendant is not compelled to secure the payment and that the facts constitute exceptional circumstances to warrant a mandatory injunction. The Plaintiffs state that their claim stems from a consent order recorded on 23rd October 2023 in the case **HCCOMMISC E886 of 2023**. That this order directed the Defendant to transfer the Kshs. 74,300,000.00 from the account of *Stay Online* to the Plaintiffs, as the company was indebted to them. 3. The Plaintiffs state that the court order was served on the Defendant on 27th December 2023, the monies in the *Stay Online* account were preserved by subsequent court orders, including one made on 13th March 2024, with the Defendant's notice and consent. That an application by *Stay Online* to set aside the consent order was dismissed on 17th November 2025 and a formal demand was made to the Defendant on 17th November 2025, but the Defendant refused and failed to remit the funds and the informed the Plaintiffs that the account in question had a *nil* balance and it was therefore unable to comply with the court order. 4. In response, the Defendant states that the Plaintiffs have not met the legal threshold for the orders they seek and that the application is intended to coerce, arm-twist and/or blackmail it into acceding to unlawful demands. The Defendant clarifies that it is a duly incorporated and licensed bank by the Central Bank of Kenya and that it is a subsidiary of the *United Bank of Africa PLC,* a large Pan-African financial group operating in over 20 countries. 5. The Defendant depones that it is financially solid, has been operating in Kenya since 2009 with 5 branches, and is fully compliant with all regulatory requirements and its audited accounts for the period ending December 2025 are exhibited to prove its financial stability. That no evidence has been presented to show that the Defendant intends to cease operations, wind up, or dispose of assets in Kenya to defeat any court decree and that it is fully capable of satisfying any lawful decree. 6. The Defendant states that the core dispute is not with it but an internal wrangle among the shareholders and directors of a company, *Stay Online Limited*, who is the account holder in the Bank. That the Defendant has no interest in the funds in *Stay Online's* account beyond lawful charges and that it is merely the custodian of the account. 7. The Defendant contends that the ownership and control of *Stay Online* has been the subject of multiple, conflicting court cases and orders involving various parties, including the Plaintiff and other directors Kirimi Koome, Ambrose Obara and Desire Muhinyuza. That there is also an existing order from the Court of Appeal dated 13th March 2024 that preserves the funds in the account. The Plaintiffs have not indicated this order has been vacated. 8. The Defendant accuses the Plaintiffs of using it as a "soft target" instead of pursuing the real protagonists in the dispute, that is *Stay Online* and its various directors, and it claims the Plaintiffs have deliberately avoided joining *Stay Online* and its shareholders to the current suit to conceal the truth. The Defendant avers that it cannot comply with the Plaintiffs' demands because it is unsure who the legitimate director/signatory of *Stay Online* is, and acting on an illegitimate mandate could expose it to liability. The Defendant asserts that the real issue to be determined is the rightful directorship of *Stay Online*, and this should be heard and determined in the main suit and it prays that the Plaintiffs' application be dismissed with costs. 9. I have gone through the pleadings and the parties’ arguments and whereas the Plaintiffs' primary basis for seeking security is that the Defendant is a company fully owned by foreigners, I find that no evidence has been presented that the Defendant is disposing of assets or removing them from Kenya. The Defendant has provided substantial rebuttal evidence that it is a financially solid, licensed bank with 5 branches in Kenya and over 15 years of stable operations. It has also provided its audited accounts which demonstrate financial strength and there has been no indication from either party that the Defendant has an intention to cease operations or wind up. It has also not been disputed that the Defendant is a subsidiary of *UBA Plc*, a major Pan-African group with operations in about 20 countries. 10. In**Kuria Kanyoko *(supra)*** the Court of Appeal emphasized that the power to order security *"*…*must not be exercised lightly and only upon clear proof of the mischief aimed at*.*"* I find that the Plaintiffs have not provided clear proof that the Defendant is about to dispose of property or remove it from the jurisdiction and mere foreign shareholding is insufficient as the court requires evidence of specific intent to obstruct or delay a decree. My reading of the Plaintiffs’ depositions is that they are merely apprehensive. Fear or apprehension without a factual or evidential basis is insufficient support for an application under **Order 39 rule 5.** (see **Patrick Sagwa Kisia t/a Steg Consultants v Kay Construction Company Limited [2020] KEHC 1279 (KLR**)]**.** 11. Therefore, I am in the agreement with the Defendant that the Plaintiffs’ application does not meet the legal threshold for an application under **Order 39 Rule 5**. 12. On the mandatory injunction, this is an exceptional remedy, granted only where the case is clear and beyond doubt; and the court thinks it ought to be decided at once (see **Kenya Breweries Limited & another v Washington O. Okeyo [2002] KECA 284 (KLR)].** The underlying dispute is far from clear and I find that the Defendant has demonstrated an ongoing ownership and disputes over *Stay Online* with various court cases and orders showing a protracted battle over who is the rightful director of the company. The Court of Appeal order of 13th March 2024 preserves the funds in the *Stay Online* account pending the hearing of an appeal and the Plaintiffs have not indicated this order has been vacated. 13. It is clear that the Defendant is caught in the middle of a dispute between warring factions and it cannot determine who the rightful director/signatory of *Stay Online* is. I agree that the real issue is who controls *Stay Online*, not whether the Defendant owes money. The Plaintiffs are asking the court to compel the Defendant to pay money from an account belonging to *Stay Online* not the Defendant itself as it is merely the custodian of the account. *Stay Online* is not a party to this suit. 14. As stated above, the Court of Appeal has already preserved the funds and there are ongoing disputes about who is authorized to operate *Stay Online's* accounts. For these reasons, it is clear that the Plaintiffs have not made out a clear case for a mandatory injunction. **Conclusion and disposition** 1. In the upshot, I dismiss the Plaintiffs’ application dated 21st May 2026 with costs. **RULING** delivered virtually, dated and signed at **NAIROBI** This **30th** day of **June** 2026. **PETER MULWA** **JUDGE** **In the presence of:** *Mr. Nelson Havi, SC* for Plaintiff/applicant *Mr. Muchoki* for Defendant/respondent Court Assistant*: Lispa*