https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4857

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELC CIVIL CASE NO. ELCLC E074 OF 2026** **PIZOL COMPANY………………………PLAINTIFF/APPLICANT** **VERSUS** **WILSON WAMITI NG’ETHE…………DEFENDANT/RESPONDENT** **RULING** | | | | | --- | --- | --- | | | | | | | 1. Before the Court is the Plaintiff's **Notice of Motion** dated **13th July 2026**, seeking inter alia, an interlocutory injunction restraining the Defendant from withdrawing, transferring, debiting or otherwise dealing with the sum of Kshs. 20,000,000 deposited into the Defendant's bank account, Cooperative Bank Account number 01192842165900, pending the hearing and determination of the suit. 2. The application is premised on the grounds that the parties entered into a sale agreement for the purchase of **Ngong/ Ngong/ 19192**, the suit property herein, at a consideration of Kshs. 40,000,000, out of which the Plaintiff paid a deposit of Kshs. 20,000,000. The Plaintiff contends that the Kshs 20,000,000 was paid on condition that the Defendant was to align the discrepancy in the title acreage with the acreage on the ground. He avers that despite repeated requests, the Defendant has failed to regularize the discrepancy, thereby necessitating issuance of a notice and the subsequent institution of the suit. The Plaintiff fears that unless restrained, the Defendant will withdraw or dissipate the funds, thereby rendering any decree in his favour nugatory. 3. The sole issue for determination is whether the Plaintiff has satisfied the threshold for grant of the interlocutory relief sought. The principles governing the grant of temporary injunctions are well settled in **Giella v Cassman Brown & Co. Ltd [1973] EA 358**, as restated by the **Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.** An applicant must establish a prima facie case with a probability of success, demonstrate that he stands to suffer irreparable injury incapable of compensation by an award of damages, and where the Court is in doubt, the application is determined on a balance of convenience. 4. Although couched as an application for a temporary injunction, the Plaintiff seeks to restrain the Defendant from dealing with monies standing to the credit of the Defendant's own bank account. The practical effect of the order would be to freeze the Defendant's account pending determination of the suit. 5. This relief is different from an ordinary interlocutory injunction restraining a party from wasting an asset. An order restraining a party from dealing with funds in his own bank account is in substance a freezing order, commonly referred to as a Mareva injunction. Such an order does not preserve the subject matter of the dispute but prevents a defendant from dissipating assets with the effect of frustrating the enforcement of a future Judgment. It is therefore an exceptional remedy granted only upon strict proof that the Applicant has a good arguable case and that there exists a real risk that the Respondent will dispose of or dissipate assets so as to render any Judgment ineffectual. This power is exercised cautiously as such an order significantly interferes with a party’s proprietary rights before liability has been established. The standard of proof must therefore be slightly higher. 6. In the present case, the Plaintiff has identified the account into which the Kshs. 20,000,000 was deposited. However, the evidence before the Court shows that the account is maintained in the Defendant's name. The Plaintiff has neither pleaded nor demonstrated that the account is an account in which the Defendant holds the money upon trust for the Plaintiff. 7. The Plaintiff's complaint is essentially that the Defendant breached the sale agreement by failing to rectify the acreage discrepancy. If ultimately established, the Plaintiff would have several remedies including; recovery of the deposit, damages, rescission, specific performance, or such other contractual remedies as the Court may find appropriate. 8. The Plaintiff has not demonstrated that damages would be an inadequate remedy. Neither has he placed before the Court any evidence that the Defendant is disposing of assets, transferring funds beyond the Court's reach, or otherwise acting with the intention of defeating the execution of any decree that may ultimately be issued. Mere apprehension that the Defendant may utilize money standing in his own account does not meet the stringent threshold required for grant of a freezing order. 9. The Court is therefore not persuaded that the application satisfies either the principles governing interlocutory injunctions under **Giella v Cassman Brown** or the more exacting requirements applicable to a Mareva injunction. Accordingly, the application is dismissed. Costs of the application shall abide the outcome of the main suit. Orders accordingly. **Dated, Signed and Delivered virtually at Kajiado this 27th day of July 2026.** **JUDY OMANGE** **JUDGE.** **IN THE PRESENCE OF:** Mr Dingi for the Applicant Mr Karani for the Respondent Peter – Court Assistant.