Oil Com (K) Limited v Kanyi & another (Civil Case E012 of 2024) [2026] KEHC 6717 (KLR) (15 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT CIVIL CASE NO. E012 OF 2024** **OIL COM (K) LIMITED…………………………………APPLICANT** **VERSUS** **AGNES GATHONI KANYI** **ANNE NYAMBURA KANYI……………………………RESPONDENTS** **RULING** 1. Before this Court is the Notice of Motion dated **15th October 2024** by which the Applicant **OILCOM (K)** **LIMITED** seeks the following orders:- **“1. SPENT.** **2. SPENT.** **3. SPENT.** **4. THAT pending the hearing and determination of this suit,** **this Honourable Court be pleased to grant a temporary order of injunctive directed at the Defendants/** **Respondents restraining them, whether by themselves, their agents, servants and or employees from receiving and or dispensing or in any other way** **dealing in petroleum products from the Plaintiff’s tanks, pumps and or any other equipment, fittings or fixtures whatsoever at the petrol service station situated at Title Number Aguthi/Gatitu/1400;** **5. THAT pending the hearing and determination of this suit, this Honourable Court be pleased to grant an order of temporary injunction directed at the 1st and 2nd Defendants, whether by themselves or through their agents servants and or employees from interfering with, alienating, leasing, or using in any manner howsoever or claiming ownership of the aforesaid developments fixtures and fittings on the suit property and** **6. THAT the costs of this application be provided for.”** 2. The application was premised upon **Section 1A, 1B, 3, 3A and 63 of the Civil Procedure Act, Cap 21 of the Laws of Kenya, Order 40 Rules 1, 2, and 4, Order 51 Rule 1 of the Civil Procedure Rules 2010** and all other enabling provisions of the law and was supported by the affidavit of even date, the Further affidavit dated **11th July 2025** and supplementary Affidavit dated **16th February 2016** all sworn by **ALI** **HUSSEIN ADEN** the Manager of the Plaintiff Company. 3. The Respondents **AGNES GATHONI KANYI** and **ANNE NYAMBURA** **KANYI**, opposed the application through the Replying affidavit dated **20th November 2024** sworn by the 1st Respondent. 4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated **11th July 2025** whilst the Respondents relied upon their written submissions dated **20th November 2025**. **BACKGROUND** 5. The Applicant is a limited liability company licensed to carry on the business of oil marketing within the Republic of Kenya. The Respondents are the joint administrators of the estate of the late **NAHASHON KANYI WAITHAKA**. 6. The Applicant state that by way of a lease dated **3rd September 2002** the late **Nahashon Kanyi Waithaka** (hereinafter referred to as ‘**the** **lessor’**) granted to Caltex oil Kenya Limited a lease of all that property known as **LR AGUTHI/GATITU/1400** (hereinafter the ‘**suit** **property**) for a term of ten (10) years and ten (10) months commencing from **6th September 2002**. 7. Pursuant to a change of name on **18th October 2005** **Chevron Kenya** **Limited** succeeded **Caltex Oil Kenya Limited**. Thereafter Chevron transferred all its business and assets including those on the suit land to the Applicants predecessor in title **TOTAL KENYA LIMITED**. 8. On **30th August 2010** Total Kenya entered into a sale agreement with the Applicant as a result of which the Applicant took over ownership of the service station, features and fittings on the suit property. 9. The Applicants lease on the suit property dated **3rd September 2002** was due to expire **6th July 2013**. Sometime in **July 2013** the Applicant sought to exercise its option to renew the lease. The lessor agreed to grant the Applicant a further lease of ten (10) years and ten (10) months commencing from **6th July 2013** at an agreed rent of **Kshs. 7,000,000** [seven Million only) for the entire period of the lease. 10. The Applicant state that in early **December 2024** the Respondents indicated that they were amenable to renewing the lease on terms and conditions to be agreed upon between the parties. However the Respondents later issued the Applicants with a three (3) month notice to vacate the suit property with effect from **1st September 2024**. 11. The Applicant states that in **September 2024** the Respondents re-entered the suit property and took back possession of the same and demanded that the Applicants remove all its movable property. 12. The Applicants state that it had made substantial improvements and developments on the suit property including a fully functional fuel service station and ancillary amenities. That these items were not intended to become the property of the Respondents. 13. The Applicant states that they acceded to the Respondents demand and removed their movable property from the premises. They allege that the Respondents however stake a claim of ownership of the fixtures erected on the suit property e.g canopy, fuel tanks, and associated piping breathers, tyre centre, LPG store, car wash bay generator room, office building, mini-mart and cabro paving. The Applicants contend that the Respondents claim to the above fixtures amounts to conversion or unjust enrichment. That as a result of the Respondents unlawful claim the Applicant has suffered loss and damage. That unless restrained from utilising the said fixtures by way of an injunction, the Respondent will persist in using and abusing the said fixtures to the detriment of the plaintiff. 14. The Applicant then filed in the High Court this suit vide the plaint dated **15th October 2024**. Contemporaneously with that suit the Applicant filed this application seeking injunctive orders pending the hearing and determination of the suit. 15. As stated earlier the Respondents opposed this application. The Respondents in their replying affidavit assert that there is no property belonging to the Applicant remaining on the suit property. They state that on **27th and 28th September 2024** the Applicant was allowed access to the premises to remove all their moveable assets and stock in trade which they had installed in the suit property. 16. The Respondents equally assert that the buildings erected on the suit property do not belong to the Applicant as the lease agreement dated **24th April 1973** clearly provided that the subject matter of the lease was **LR Aguthi/Gatitu/796** **“together with all the buildings and improvements erected thereto**.” The Respondents categorically deny that the developments listed in the plaint belong to the Applicant. 17. The Respondents state that the late **Nahason Kanyi Waithaka** was not a party to the Asset Purchase Agreement dated **30th August 2010** which was referred to by the Applicant as that agreement was entered into between the Applicant and **Total Kenya Limited**. That as such the said agreement is not binding on the Respondents. 18. The Respondents reiterate that the Applicant is only entitled to any equipment which it had installed on the premises as well as any of their movable assets which were removed on **28th September 2024**. They argue that if the orders sought are granted it would allow the Applicant to demolish and/or deface the improvements and buildings on the suit property to the detriment of the Respondents. 19. Finally the Respondents submit that although the lease agreement provided for dispute resolution mechanism, the Applicant has bypassed the same and moved directly to court. They term the present application an afterthought as the same was filed several days after the Applicant had carted away all its moveable assets and petroleum products. 20. Finally the Respondents pray that the present application be dismissed in its entirety. **ANALYSIS AND DETERMINATION** 21. I have carefully considered the application before this court, the reply filed thereto as well as the written submissions filed by both parties. It must be borne in mind that at this interlocutory stage the court is not required to render hard and fast conclusions on any issue as the evidence is yet untested. The only duty the court has at this stage is to determine whether a prima facie case has been established. 22. The law relating to the grant of interim interlocutory orders is clearly set out in **Order 40 Rule 1** of the **Civil Procedure Rules** which Rule provides thus:- **1. 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; or** **(b) 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.”** 23. The conditions precedent for grant of interim interlocutory orders were set out in the case of **GIELLA -VS- CASMAN BROWN** in which it was held 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.”** 24. The definition of a Prima facie case was given in the case of **MRAO -VS-** **FIRST AMERICAN BANK OF KENYA & 2 OTHERS 2003 eKLR**, where it was held as follows:- **“…………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 as to call for an explanation or rebuttal from the latter…. A prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”** 25. It is also pertinent to quote the Court of Appeal in **NGRURUMAN** **LIMTIED -VS- JAN BONDE NIELSEN & 2 OTHERS [2013] eKLR**, where it was observed as follows:- **“…..in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely**. **All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation.** **Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The Applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right, which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.” [Own emphasis]** 26. The Applicants state that they have undertaken substantial developments and improvements in the suit property which include construction of a fully functional fuel service station with ancillary amenities i.e a canopy, fuel tanks and associated piping a tyre centre, LPG store, carwash, Generator room, office building, mini-mart and cabro pavings. The Applicants position is that these all constitute moveable properties which were affixed on the suit property for the purpose of the Applicants business and by law ownership of the same has not in any way been transferred to the Respondent. 27. The Applicants claim that the Respondents having given them notice to vacate the suit property, informed the Applicants to remove from the premises all their movable property. That however the Respondents have prevented the Applicants from removing their fixtures. 28. The Respondents position is that the said fixtures belong to them by virtue of **clause 4(f)** in the lease agreement dated **25th April 1973** which provided that developments done by the lessee would become the property of the lessor upon expiry of the lease. 29. The question of whether or not the items being claimed by the Applicants belong to them or to the Respondents is not one which the court can determine at this interlocutory stage. It is a question which is reserved for determination at the trial of the suit. 30. Although the Applicants claim that they were not allowed time to remove their assets it was averred by the Respondents that the Applicants were allowed to access the premises on **27th and 28th September 2024** and they did remove all their moveable assets and in fact the Applicants siphoned out all the petroleum products from the underground tanks as evidenced by the inventory annexed to the Replying Affidavit. (Annexture ‘**AGK 1’**) 31. With regard to the alleged renovations done by the Applicant on the premises these were clearly undertaken with full knowledge that the lease would at some stage expire. The Applicant has not tabled any evidence to show that the lease was supposed to continue in perpetuity due to the developments undertaken on the suit property. It is true the Applicants did exhibit letters indicating their desire to renew the lease but the decision of whether or not to extend the lease lay exclusively with the Respondents. I find that the Applicant has failed to show a prima facie case. 32. I am not persuaded that the Applicants stand to suffer irreparable injury if the injunction sought is not granted. The items being claimed by the Applicant are items who value can be quantified and in the event that the Applicants succeed at trial then they can be adequately compensated by an award of damages. 33. Finally I find that this application has no merit. The same is dismissed in its entirety. Costs to be met by the Applicant. **Dated in Nyeri this 15th day of May 2026.** **………………….** **MAUREEN A. ODERO** **JUDGE**