Gudka v Gudka (Environment and Land Case E032 of 2023) [2026] KEELC 4398 (KLR) (10 July 2026) (Ruling)

Gudka v Gudka (Environment and Land Case E032 of 2023) [2026] KEELC 4398 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEELC 4398 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case E032 of 2023 A Ombwayo, J July 10, 2026 Between Prabha Mahesh Gudka Applicant and Surendrakumar Somchand Gudka Defendant Ruling Applicant’s Case 1.The Plaintiff's Notice of Motion dated 8th December, 2025 seeks the following principal orders that this Honourable court be pleased to issue a Mareva injunction Order freezing any action on the Defendant's parcel of land comprised in the title Mombasa/Block XIX/334 and preventing the Defendant/Respondent from disposing of, alienating, or in any way diminishing the value of the property pending the hearing and determination of the main suit and that in the alternative to prayer 3 above, this Honourable court be pleased to issue an Order directing the Defendant/Respondent to put such security before judgment as will be adequate to satisfy any judgment that may be made on the Plaintiff's Liquidated claim pending the hearing and determination of the main suit. That the Costs of the application be provided for. 2.The application is premised on the grounds that the Plaintiff's suit has partially succeeded as following a Court Annexed Mediation under MSA/MED/001/2024, the parties consented to a Partial Mediation Settlement Agreement where both parties agreed that the suit property should be divided equally for each party to have independent control, access and ownership of their respective potion; 3.The balance of the Plaintiff's unadjudicated claim is for the recovery of Mesne profits amounting to Kshs 5,855,828/= plus interest at commercial rates of 19% per annum from respective date until payment in full. The amount being the half share of the rent which would have been payable to the Plaintiff/Applicant on the open market for a lease of the suit property and which the Defendant/Respondent has retained for his benefit; 4.The Defendant/respondent is a resident of the United Kingdom working for gain at 70 Lindsay Drive, Kenton, Harrow MIDDX HA3 OTD. Land Title number Mombasa/Block XIX/334 is the only known asset owned by the Defendant/Respondent in Kenya; and that the Plaintiff has credible information to believe that the Defendant/respondent intends to sell his property which is presently his only asset in Kenya. The Plaintiff/Applicant has credible reason to believe that the Respondent intends to transfer the proceeds of the sale to the United Kingdom where he resides. 5.The Defendant has filed a Replying Affidavit thereto sworn by his son, DEPEN GUDKA on 9th December, 2025 merely saying there is no evidence the Defendant to show the Defendant is about to abscond or dispose of the property. The applicant in a nuts-shell submits that he has met the test for grant of the orders sought. 6.He relies on Halsbury's Laws of England (3rd Ed. Vol. 3(1)) at Page 329 as follows:“A Mareva injunction is 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. The foundation of the court's jurisdiction is the need to prevent judgements of the court from being rendered ineffective, whether by the removal of the defendant’s assets from the jurisdiction, or by dissipation.......The foundation of the court's jurisdiction is the need to prevent judgments of the court's from being rendered ineffective, whether by the removal of the defendant's assets from the jurisdiction, or by dissipation.” 7.On the purpose and application of Mareva injunctions, Lord Denning in the locus classicus case of Mareva Campania Naviera SA vs 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 supplied) 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 offering 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 property as the court thinks fit until the disposal of the suit or until further.” The Court in the case of UBA Kenya Bank Limited v Sylvia Mutuli Magatsi [2015] eKLR, outlined the threshold for the grant of a Mareva injunction as follows:“The grant of a freezing injunction is governed by principles quite distinct from those laid down for ordinary interim injunctions. Before granting a freezing injunction, the Court will usually require to be satisfied that:i.The Claimant has 'a good arguable case' based on a pre-existing cause of action.ii.The claim is one over which the Court has jurisdiction.iii.The defendant appears to have assets within the jurisdiction.iv.There is real risk that those assets will be removed from the jurisdiction or otherwise dissipated if the injunction is not granted.v.The balance of convenience is in favor of granting the injunction.vi.The Court can also order disclosure of documents or the administration of requests for further information to assist the claimant in ascertaining the location of the defendant's assets.” 8.The plaintiff argues that in the present suit, the above threshold has been met as;a.The Plaintiff has a good arguable case. Indeed, her claim has partially succeeded in mediation;b.Without doubt, this court has jurisdiction;c.The Defendant, indeed, owns land title number Mombasa/Block XIX/334;d.Being the only known asset owned by the Defendant in Kenya, there is real risk of its disposal or dissipation if the injunction is not granted;e.The balance of convenience absolutely tilts in favour of granting the injunction. Grant of the Mareva injunction order is therefore fully merited. 9.On Security before judgment, the plaintif argues that the jurisprudence regarding deposit of security before judgment is quite clear and settled. He refers to the case of In Kuria Kanyoko T/A Amigos Bar and Restaurant vs Francis Kinuthia Ndoru, Helen Njeru Ndoru & Andrew Kinuthia Ndoru, (1988) 2KAR 126, at p.127 the court pronounced itself thus:“The power to attach before judgment must not be exercised lightly and only upon clear proof of the mischief aimed at by Ord.38, r.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 the plaintiff.” 10.The Court in the case of Shiva Enterprises Limited v Jivalkumar Tulsidas Patel T/A Hytech Investment, (2006) eKLR, stated :-“It ought to always be remembered that the purpose of this jurisdiction is to secure the plaintiff against the defendant's act aimed at defeating judgment that may be entered. It is however not the intention of this jurisdiction to harass or to punish the defendant before judgment is entered against him.” (Emphasis supplied) 11.It is noteworthy that the Defendant has not personally offered any information or evidence to discredit the Plaintiff's claim of planned disposal of his only known asset. In fact, the Replying Affidavit is sworn on the Defendant's behalf by his son. 12.It is the Plaintiff's submission that her application in respect of this alternative prayer is merited so as to ensure that the ultimate decree that may be issued in the Plaintiff's favour on the outstanding liquidated claim may not be rendered nugatory or otiose with no hope of enforcement. Grant of the order would also safeguard the integrity of the judicial process and the efficacy of the judgment that may be entered against the Defendant. Respondent’s Case 13.On his part, the respondent argues that the applicant has not met the test for grant of Mareva Injunction. At the outset, the Respondent invites this Honourable to note that these reliefs are extraordinary, draconian, and quasi executive in nature as they seek to contain a registered proprietor from dealing with his property prior to judgment, a remedy that is inherently drastic and intrusive. Such exceptional relief must therefore be granted sparingly and strictly within established statutory and equitable bounds. 14.The Respondent submits that the Applicant has failed, in toto, to produce any iota of evidence in support of its assertion that the Respondent intends to dispose of the suit property and transfer proceeds therefore outside the court's jurisdiction. Instead, the Applicant has based his entire application on apprehension and hearsay. 15.Moreover, the Applicant's foundational claim is based solely on phrases such as “credible information,” “informed,” and “believe.” No documentary evidence, affidavit from an informer, communication, advertisement of sale, sale agreement, or conduct by the Respondent suggesting a threatened disposal has been presented. 16.The Court in Maeri v Onduso & Another (2023) KEHC 21492 attached as LOA3, held that an Applicant must demonstrate a real, actual, and imminent threat of dissipation of assets with intent to defeat a judgment. Mere apprehension is insufficient. In so doing, the judge held thus:…it is imperative, prior to the grant of a Mareva injunction, for the Applicant to produce evidence of a real and actual threat that assets will be disposed. Further, a successful Applicant must also demonstrate that the disposal of these assets was intended to defeat any judgment that would be entered in his favour. 17.In John Kipkemboi Sum v Lavington Security Guards Limited [1998] KECA 274 (KLR) attached as LOA4, the Court of Appeal cautioned that attachment before judgment, and by extension, freezing orders, must be based on clear proof of intent to obstruct or delay justice. The Court stated thus:“The power to attach before judgment 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 the intent to obstruct or delay any decree that may be passed against him.” 18.Similarly, in the case of Kanduyi Holdings Limited v Balm Kenya Foundation & Another [2013] eKLR attached as LOA5, the Court held that:“Our Order 39 Rules 5 and 6 could be said to a statutory replication of an interlocutory relief known as Mareva injunction or freezing. Accordingly, Order 39 Rules 5 and 6 of the Civil Procedure Rules should operate within known dimension of law drawing from the case Mareva Compania Naviera SA v International Bulk carriers SA [1975] 2 Lloyd dis Rep 509] and other judicial precedents based on the subject. Order 39 rule 5 and 6 of the CPR is not to be used to:a.pressure a defendant; orb.as a type of asset stripping (forfeiture)orc.as a conferment of some proprietary right on the plaintiff upon the assets of the Defendant.” 19.The respondent submits that the Applicant has utterly failed to demonstrate, even prima facie, that the Respondent has committed or is in any manner contemplating any act designed to defeat a future decree. The application, being founded entirely on speculation, conjecture, hearsay, and unverified allegations, falls far short of the threshold required to justify the drastic orders sought. In the present matter, the Applicant's surviving claim is exclusively for mesne profits quantified at Kshs. 5,855,828, an entirely monetary claim. It therefore falls, in its entirety, to satisfy the second mandatory limb under Giella. 20.Accordingly, we submit that the Applicant has equally fallen short on both limbs, and, on that account, not entitled to the exceptional relief of a Mareva injunction. 21.Moreover, it bears emphasis that a Mareva injunction is not a proprietary remedy, nor is it intended to furnish a claimant with de facto security for an anticipated judgment. The Applicant's attempt to employ this extraordinary jurisdiction as a mechanism for securing its monetary claim is therefore fundamentally misconceived. 22.This principle was lucidly articulated by Lord Bingham in Fourie v Le Roux & Others [2007] UKHL 1; [2007] 1 AII ER 1087 a decision cited with approval in Maeri v Onduso & Another (Supra), where Lord Bingham observed:“Mareva (or freezing) injunctions were, from the very beginning, and continue to be, granted for an important but limited purpose: to prevent a defendant dissipating his assets with the intention or effect of frustrating enforcement of a prospective judgment. They are not granted to give a claimant advance security for his claim, although they may have that effect. They are not an end in themselves. They are an supplementary remedy, granted to protect the efficacy of court proceedings, domestic or foreign.” 23.The Respondent further submits that the applicant has failed to prove any risk that the Respondent herein intends to dispose off the suit property and transfer proceeds outside this Honourable Court's jurisdiction with intention to defeat execution. As aforesaid, the Applicant's case is premised on hearsay, conjecture and apprehension. 24.On whether the Applicant is entitled to the alternative prayer for security before judgment, the respondent submits that this is, in substance, no less intrusive than the primary Mareva relief. Both remedies presuppose demonstrable evidence of an intention to obstruct or delay execution and neither may issue merely because a defendant resides outside the jurisdiction. The Applicant has not satisfied the statutory requirements under Order 39 of the Civil Procedure Rules, which governs attachment before judgment. Nor has the jurisdiction under this Order is exceptional, invoked only where stringent factual conditions exist, primarily proof that the defendant is about to dispose of or remove property with the intent of obstructing execution. 25.Apart from speculative assertions and unverified allegations, the Applicant has not produced a single piece of evidence indicating that the Respondent intends to obstruct or delay execution, dispose of his property, or remove assets outside the jurisdiction of the Honourable Court. This evidentiary vacuum mirrors the Court's findings in Bruton Gold Trading LLC v Anne Atieno Attach & Others, where the Court underscored that a freezing order requires concrete proof, not mere suspicion. 26.The Court in International Air Transport Association & Others v Akarim Agencies Co. Ltd & 2 Others [2014] eKLR attached as LOA7, clarified the narrow purpose of Order 39, observing:“Order 39 Rule 1 and 5…serve the purpose of preventing the Respondent from doing any act that will obstruct or delay execution of a decree… and the standard of proof is that set out in the case of Giella v Cassman Brown.” 27.Importantly, the Applicant has not demonstrated irreparable harm, risk of dissipation, obstruction of justice, or inability by the Respondent to satisfy a decree. The prayer for security before judgment therefore fails the legal and evidentiary tests applicable to such relief. 28.Further, the conduct of the Respondent throughout the litigation, successful participation in mediation and compliance with all case management directions, negates any suggestion of evasiveness or intention to defeat a decree. Accordingly, we submit that the alternative prayer for security is equally unmerited and should be declined. Analysis And Determination 29.A Mareva injunction (freezing order) in Kenya is a court order that restrains a defendant from removing, dissipating, or transferring assets within the jurisdiction before a trial concludes. Governed under Order 39 of the Civil Procedure Rules2010, it secures potential judgments so successful litigants aren't left with barren decrees. To successfully secure a Mareva injunction in a Kenyan court, the plaintiff must prove:1.Good Arguable Case: The plaintiff must demonstrate a strong underlying claim on the merits.2.Assets in the Jurisdiction: The defendant must hold tangible or intangible assets (e.g., bank accounts, properties) within Kenya. [3.Real Risk of Dissipation: There must be credible evidence that the defendant is likely to abscond, move funds out of the country, or conceal assets to avoid paying the eventual judgment.]4.Full and Frank Disclosure: Because these applications are often made ex parte (without the defendant present), the plaintiff is legally required to disclose all material facts—even those that might weaken their case. 30.On the issue of arguable case, this court finds that the plaintiff has an arguable case. Plaintiff's suit has partially succeeded as following a Court Annexed Mediation under MSA/MED/001/2024, the parties consented to a Partial Mediation Settlement Agreement where both parties agreed that the suit property should be divided equally for each party to have independent control, access and ownership of their respective potion; The balance of the Plaintiff's un-adjudicated claim is for the recovery of Mesne profits amounting to Kshs 5,855,828/= plus interest at commercial rates of 19% per annum from respective date until payment in full. The amount being the half share of the rent which would have been payable to the Plaintiff/Applicant on the open market for a lease of the suit property and which the Defendant/Respondent has retained for his benefit. On assets in Jurisdiction, this court finds that the defendant is the owner of the parcel of land comprised in the title Mombasa/Block XIX/334. This court observes further that there is a risk of dissipation as the defendant is not in the Country of Kenya within the jurisdiction of this court.I do find that the applicant has made a full and honest disclosureand therefore he is entitled to the orders sought. 31.The Court in the case of UBA Kenya Bank Limited v Sylvia Mutuli Magatsi [2015] eKLR, outlined the threshold for the grant of a Mareva injunction as follows: 32.The grant of a freezing injunction is governed by principles quite distinct from those laid down for ordinary interim injunctions. Before granting a freezing injunction, the Court will usually require to be satisfied that:i.The Claimant has 'a good arguable case' based on a pre-existing cause of action.ii.The claim is one over which the Court has jurisdiction.iii.The defendant appears to have assets within the jurisdiction.iv.There is real risk that those assets will be removed from the jurisdiction or otherwise dissipated if the injunction is not granted.v.The balance of convenience is in favor of granting the injunction.vi.The Court can also order disclosure of documents or the administration of requests for further information to assist the claimant in ascertaining the location of the defendant's assets.” 33.I do find the application merited and do grant a Mareva injunction freezing any action on the Defendant's parcel of land comprised in the title Mombasa/Block XIX/334 and preventing the Defendant/Respondent from disposing of, alienating, or in any way diminishing the value of the property pending the hearing and determination of the main suit. Mention on the 24th September 2026. SIGNED BY/FOR:THE JUDICIARY OF KENYAHON. JUSTICE ANTONY O. OMBWAYOMOMBASA ENVIRONMENT AND LAND COURT