https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3025

SRK Sons Limited v Moennsad & another (Environment and Land Case E611 of 2025) [2026] KEELC 3025 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELC 3025 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E611 of 2025 MN Kullow, J May 15, 2026 Between SRK Sons Limited Plaintiff and Chandra Shekhar Moennsad 1st Defendant Baruka Kishorlal Moennsad 2nd Defendant Ruling The Applications 1.This ruling concerns two applications filed by the Plaintiff in this matter. The first is a Notice of Motion dated 2nd December 2025 brought under Order 40 of the Civil Procedure Rules and all enabling provisions of the law. In the said application, the Plaintiff seeks, inter alia, orders for preservation of the sum of Kshs. 1,200,000/= deposited as security for costs in MCELC No. E170 of 2025, vacant possession of the suit property, and enforcement assistance by the police. The application is supported by the grounds set out on its face and the supporting affidavit sworn by Ahmed Noorani. The Plaintiff avers that it is the lawful owner of the suit property and that the Defendants have unlawfully occupied the same, thereby denying it access and rental income, contrary to its constitutional right to property. 2.The second application is dated 22nd January 2026 and seeks, among other orders, that the application dated 2nd December 2025 be recalled and certified urgent in view of recent developments. The Plaintiff further seeks an interlocutory injunction restraining the Defendants from withdrawing the sum of Kshs. 1,200,000/= deposited as security for costs, or in the alternative, that the said sum be transferred and deposited in Court pending the hearing and determination of this suit. This application is similarly supported by the grounds on its face, the supporting affidavit sworn by Ahmed Noorani. The Plaintiff avers that unless the said sum is preserved, it stands to suffer irreparable loss, as the Defendants allegedly have no other known assets within the jurisdiction. 3.From the material placed before the Court, the Plaintiff avers that although the earlier suit was dismissed on account of want of jurisdiction, the substantive dispute remains alive and is now properly before a court of competent jurisdiction. It is further contended that the deposited sum constitutes the only available security for any potential costs or recovery, and that its release would render the Plaintiff’s claim nugatory. The Response 4.In opposition to the applications dated 2nd December 2025 and 22ndJanuary 2026, the 2nd Defendant/Respondent filed Grounds of Opposition dated 12th February 2026 contending that the prayers sought, particularly those relating to the preservation and/or injunction against withdrawal of the sum of Kshs. 1,200,000/= deposited as security for costs, are misconceived, incompetent and an abuse of the process of the Court. 5.The Respondent avers that the said sum arose from proceedings in Milimani MCELC No. E170 of 2025, which was determined on 27th November 2025, wherein the trial court expressly found that it lacked jurisdiction. It is therefore argued that upon such a finding, the court became functus officio, and all orders issued therein, including the order for deposit of security for costs, became nullities, void ab initio and incapable of enforcement. 6.The Respondent further contends that it is a settled principle of law that where a court lacks jurisdiction, its proceedings and orders are void and of no legal effect, reliance being placed on authorities such as Sir Ali Bin Salim vs Shariff Mohammed Sharry (1938) KLR and Mutegi v Nyaga & 2 others [2014] KECA 497 (KLR). 7.It is thus argued that the Plaintiff cannot seek injunctive relief to preserve a void order, and that the remaining prayers in the application dated 2nd December 2025 are final and determinative in nature, as they seek to grant vacant possession and conclusively determine the dispute at an interlocutory stage. Accordingly, the Respondent maintains that the applications are devoid of merit, offend the principles of fair hearing and due process, and ought to be dismissed with costs. Submissions 8.The applications were disposed of by way of written submissions. 9.The Plaintiff/Applicant filed written submissions in support of the applications, contending that it is the registered proprietor of the suit property and is entitled to vacant possession and eviction of the Defendant’s agents. It was submitted that the Defendant had previously filed suit in MCELC No. E170 of 2025, which was struck out for want of jurisdiction, and that the present suit is properly before this Court. 10.The Plaintiff further argued that the Defendant, being a foreigner residing outside the jurisdiction, has no known assets within Kenya and has continued to unlawfully occupy the premises, thereby occasioning loss of rental income. 11.The Plaintiff identified the key issues for determination as: whether it is entitled to eviction, whether the security for costs should be transferred to this Court, and whether the Defendant’s status as a foreigner justifies the orders sought. On the merits, the Plaintiff submitted that its title is indefeasible and that the Defendant’s continued occupation is unlawful, and in the absence of any defence or replying affidavit, its claim remains uncontroverted. It was further urged that the sum of Kshs. 1,200,000/= deposited in the subordinate court ought to follow the dispute, reliance being placed on Regency Cooperative Savings and Credit Society Ltd -vs- Libyan Arab African Investments Co. K. Ltd and 4 Others [2022] eKLR and Westmint Holdings SDN BHD -vs- Central Bank of Kenya [2023] KESC 11 (KLR). 12.The 2nd Defendant/Respondent, in opposition, submitted that this Court cannot preserve or regulate funds arising from proceedings that were struck out for want of jurisdiction, as all orders therein were rendered null and void ab initio, relying on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, Sir Ali Bin Salim vs Shariff Mohammed Sharry (1938) KLR, Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169, Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] KECA 250 (KLR), and Hannah Mwihaki Karigi v Ruth Waithera Karigi & 6 others [2020] KEHC 8002 (KLR). 13.It was further contended that security for costs is ordinarily payable by a Plaintiff and cannot be treated as a transferable entitlement, reliance being placed on Keary Development v Tarmac Construction [1995] 3 All ER 534 and Ignazio Messina & C.P.S.A v Stallion Insurance Company Ltd [2005] KECA 301 (KLR). 14.The Respondent also argued that the orders sought are final and determinative in nature and cannot be granted at an interlocutory stage, citing Giella v Cassman Brown & Co. Ltd [1973] EA 358, Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR), Kenya Power & Lighting Company Ltd v Habib [2018] KEHC 5027 (KLR), and Oakdale Commodities Limited v Sazit Company Limited & 2 others [2024] KEELC 1003 (KLR). 15.In further submissions, the Plaintiff reiterated that the 1st Defendant had failed to enter appearance or rebut the Plaintiff’s averments, and that the 2nd Defendant’s grounds of opposition did not controvert factual matters, thereby leaving the Plaintiff’s case unchallenged, The Plaintiff maintained that this Court is not being invited to revive the subordinate court proceedings but to exercise its own jurisdiction to secure the sum of Kshs. 1,200,000/=, invoking Section 1A of the Civil Procedure Act and Order 39 of the Civil Procedure Rules. Issues For Determination 16.Having considered the applications, responses and submissions on record, the issues that arise for determination are:a.Whether this Court should exercise its jurisdiction to safeguard the Plaintiff’s interests, including by ordering security for costsb.Whether the Plaintiff is entitled to the interlocutory orders sought.c.Who should bear the costs of the applications? Analysis And Determination Issue No. 1: Whether this Court should exercise its jurisdiction to safeguard the Plaintiff’s interests, including by ordering security for costs 17.The Plaintiff seeks orders directed at securing the sum of Kshs. 1,200,000/= presently held within the court system, contending that the dispute between the parties subsists and that the 1st Defendant, being a non-resident, poses a real risk of defeating any decree that may ultimately be issued. The Defendants oppose the application on the basis that the deposit arose from proceedings that were struck out for want of jurisdiction. 18.It is not in dispute that the proceedings in MCELC No. E170 of 2025 were struck out and that all orders therein were discharged. The present application is, however, not an appeal from that decision, nor is it an attempt to enforce any order arising therefrom. It is a fresh invocation of this Court’s jurisdiction in the context of a live dispute between the parties, now properly before this Court. 19.The question that arises is whether, in those circumstances, the Court should exercise its discretion to make orders that secure the Plaintiff against the risk of being unable to recover costs. The power to order security for costs is provided under Order 26 of the Civil Procedure Rules and is discretionary. 20.In the present case, it is not controverted that the 1st Defendant is a foreign national who does not reside within the jurisdiction of this Court. No material has been placed before the Court to demonstrate that the 1st Defendant has assets within the jurisdiction against which a decree for costs may be enforced. The apprehension expressed by the Plaintiff is therefore grounded on identifiable risk rather than speculation. 21.The Court has also considered the nature of the dispute and the position of the parties. The Plaintiff has instituted the present suit and is exposed to the ordinary incidents of litigation, including the possibility of incurring unrecoverable costs. In such circumstances, and in the absence of any countervailing factors placed before the Court, the balance tilts in favour of securing that risk. Accordingly, an order for security for costs is warranted. Issue No. 2: Whether the Plaintiff is entitled to the interlocutory orders sought 22.The Plaintiff seeks orders of vacant possession, eviction, and authority to enter and take possession of the suit property. The applicable principles for the grant of interlocutory injunctions are well settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358, where the Court held as follows: “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 harm which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.” 23.A prima facie case was defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KLR 125 as: "A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later” 24.However, the determination of this issue turns not only on the existence of a prima facie case, but more fundamentally on the nature of the relief sought. The prayers for vacant possession, eviction, and authority to enter and assume possession are not preservatory. They are substantive, final and determinative in nature, as they seek to conclusively determine the parties’ rights over the suit property. 25.It is settled that an interlocutory injunction is a discretionary remedy, to be exercised on the basis of sound legal principles and evidence, as stated in Njenga v Njenga [1991] KLR 401, where the Court held: “an injunction being a discretionary remedy is granted on the basis of evidence and sound legal principles.” 26.The Court is also guided by Kenleb Cons Ltd v New Gatitu Service Station Ltd & Another [1990] KLR 557, where it was held: “to succeed in an application for injunction an applicant must not only make full and frank disclosure of all relevant facts but must show he has a right, legal or equitable, which requires protection by injunction.” 27.In the present case, the orders sought go beyond the protection of a right. They seek to finally determine possession, which is the central issue in dispute. Granting such orders at this stage would effectively dispose of the suit without a full hearing, render the trial nugatory, and offend the principles of fair hearing and due process. 28.No exceptional circumstances have been demonstrated to justify the grant of such mandatory and determinative relief at an interlocutory stage. Accordingly, the prayers (3), (4) and (5) in the application dated 2nd December 2025 are declined, the same being substantive in nature and unsuitable for determination at this stage. Issue No. 3: Who should bear the costs of the applications 29.The general principle is that costs follow the event, unless the Court, for good reason, orders otherwise. In the present matter, both parties have had partial success. The Plaintiff has succeeded in obtaining preservatory relief, while the substantive prayers for vacant possession and eviction have been declined. In the circumstances, and bearing in mind the nature of the dispute, the Court is of the view that it would be just and fair to order that costs be in the cause. Final Orders 30.Accordingly, and for the reasons set out above, the Court makes the following orders:a.An order for security for costs is hereby issued against the 1st and 2nd Defendants, who shall jointly and severally deposit the sum of Kenya Shillings One Million Two Hundred Thousand (Kshs. 1,200,000/=) in Court within thirty (30) days from the date hereof.b.Pending compliance with Order (1) above, the sum of Kshs. 1,200,000/= currently held in MCELC No. E170 of 2025 shall be maintained for a period of thirty (30) days from the date hereof.c.In default of compliance with Order (1) within the stipulated period, the said sum of Kshs. 1,200,000/= shall be transferred to this suit and held as security for costs pending the hearing and determination of the suit.d.The prayers (3), (4) and (5) in the application dated 2nd December 2025, seeking orders for vacant possession, eviction, and authority to enter and take possession of the suit property, are hereby declined, the same being substantive, final and determinative in nature and unsuitable for determination at an interlocutory stage and thus shall await the determination of the substantive suit.e.Costs shall be in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH DAY OF MAY, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Omino for the Plaintiff/ApplicantMr. Cliffton for 2nd DefendantsPhilomena W. Court Assistant