https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11077

Tekto Consult Ltd v AIC (African Inland Church) Women Prayer/Conference Center (Commercial Case E774 of 2025) [2026] KEHC 11077 (KLR) (Commercial and Tax) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11077 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E774 of 2025 BW Murunga, J July 23, 2026 Between Tekto Consult Ltd Applicant and AIC (African Inland Church) Women Prayer/Conference Center Respondent Ruling Introduction And Background 1.There are two applications before this Court for determination: the Notice of Motion dated 28th July 2025, and the Notice of Motion dated 1st October 2025. Both applications were canvassed by submissions from both parties and a Replying Affidavit, and this ruling disposes of both. 2.The Notice of Motion dated 28th July 2025 is supported by the Applicant’s Supporting Affidavit sworn on even date and seeks the following substantive orders: -a.Spentb.That pending the hearing and determination of this application, this Honourable Court be pleased to issue a temporary injunction restraining the Defendant/Respondent, whether by themselves, their servants, agents, assignees, or any other party acting at their behest, from continuing with any construction works to the proposed AIC Women prayer/ conference Centre, on the property known as L.R. No. 13466 Kasarani.c.That pending the hearing and determination of this suit, this Honourable Court be pleased to issue a permanent injunction restraining the Defendant/Respondent, their servants, agents, contractors, or any person acting on their behalf, from continuing with the construction on the Proposed AIC Women Prayer/ Conference Centre, or otherwise interfering with the subject matter of the contract between the parties.d.THAT this Honourable Court be pleased to order the Defendant/Respondent to pay the Plaintiff/Applicant the sum of Kshs. 23,173,953/= being consultancy fees lawfully due and owing under the Consultancy Agreement, together with interest at court rates from the date of default (2008-2025) until payment in full.e.That this Honourable Court be pleased to make a declaration that the Defendant/Respondent is in breach of the Consultancy Agreement dated 23rd April, 2008, and that the Applicant is entitled to damages and/or compensation for the said breach.f.That the Honourable Court be pleased to issue such other or further orders as it may deem fit and just in the circumstances of this case.g.That the costs of this application be borne by the Defendant/Respondent. 3.The Notice of Motion dated 1st October, 2025 seeks the following orders: -a.Spent.b.Pending the hearing and determination of this Application, the Honourable Court be pleased to issue a temporary injunction restraining the Respondent, whether by itself, its servants, agents, contractors, assignees, or any other party acting under its instructions, from carrying out or continuing with any further construction works on the property known as L.R. No. 13466 Kasarani.c.Pending the hearing and determination of the substantive suit, the Honourable Court be pleased to issue a conservatory order preserving the status quo and restraining the Respondent, its servants, agents, contractors, or any person acting under its instructions, from taking any further step or action on the suit property that would prejudice, defeat, or render the Applicant's case nugatory.d.the costs of this Application be provided for. 4.The application is supported by the Affidavit of Arch. Dorothy Abonyo sworn on 28th July 2025 and another on 1st October, 2025 and is premised on the grounds that the Applicant is a duly retained consultancy firm under a valid Consultancy Agreement in respect of the project on L.R. No. 13466 Kasarani. 5.The matter had been referred to Court-Annexed Mediation, but the process collapsed due to the Respondent's non-commitment and refusal to negotiate in good faith. The Applicant contends that following the failed mediation, the Respondent unilaterally engaged a new team without formally disengaging the Applicant and has resumed active construction on the suit property despite the pending suit. 6.The Applicant further states that the ongoing construction continues to reference the Applicant's original designs, thereby exposing them to grave professional liability, reputational damage, and financial prejudice. 7.Further, the Applicant states that it is owed professional consultancy fees amounting to Kshs. 23,173,953/= exclusive of interest, which remain unpaid. The Applicant asserts that they notified the National Construction Authority (NCA) of the illegal construction, but no action has been taken. 8.Unless interim protection is granted, the Applicant notes that the continued construction will alter the character of the property and extinguish the subject matter of the dispute, effectively rendering the pending substantive suit nugatory and denying the Applicant an effective remedy. 9.The Respondent opposes the application vide its Replying Affidavit sworn by Mary Chege on 26th September, 2025 where it contends that the application was an abuse of the court process and ought to be dismissed with costs. 10.The Respondent argues that it entered into a binding Consultancy Agreement with the Applicant dated 30th May, 2008 for the construction of the AIC Women’s prayer/conference Centre Kasarani on Plot No. 13466, where the agreed project cost was capped at Kshs. 249,480,000/= with a reduced consultancy fee of 5% amounting to Kshs. 12,474,000/=. 11.The Respondent maintains that its project funding relies entirely on well-wishers and fund drives, and that construction had halted in 2023 when the raised funds were exhausted. 12.The Respondent further states that it has already paid the Applicant a consultancy fee of Kshs. 8,228,572/= and asserted that the Applicant voluntarily left the construction site, promising not to resume unless the Respondent raises an additional Kshs. 10,000,000/=. 13.The Respondent strongly disputes the outstanding fee of Kshs. 23,173,953/= claimed by the Applicant, labelling it an imaginary figure, and argued that Cap 525 scale fees do not apply since the project is not even halfway done and the binding 5% agreement remains operational. Additionally, the Respondent denied having brought a new construction team to the site or terminating the Applicant's services, reiterating that it is still in the process of raising the demanded Kshs. 10,000,000/= to re-engage them. Applicant’s Submissions 14.The Applicant submitted that a temporary injunction or conservatory order ought to issue where an applicant demonstrates a genuine and arguable case and where continued construction threatens to alter the substratum of the dispute. Reliance was placed on the sequential three-fold test in Giella v Cassman Brown & Co. Ltd [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR. 15.The Applicant also cited Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR to define a prima facie case as an apparent infringement of a legal right, and relied on Kibira & 3 Others v Njoroge & 3 Others [2024] KEELC 381 (KLR) and Seii & 10 others v Nairobi City County Government & 8 others [2024] KECA 1929 (KLR) to justify halting ongoing developments to preserve the subject matter. 16.It was further submitted that the Applicant established a prima facie case with a probability of success by proving the existence of a valid Consultancy Agreement dated 23rd April 2008, under which it rendered architectural designs and services currently being utilized by the Respondent. 17.The Applicant argued that the Respondent has failed to settle outstanding professional fees amounting to Kshs. 23,173,953/= and has unlawfully resumed construction without formally disengaging the Applicant, which directly violates its contractual and proprietary professional interests. 18.The Applicant further maintained that it stands to suffer imminent, irreparable harm incapable of compensation by damages because the ongoing construction proceeds outside its supervision while still utilizing its designs. Invoking Sections 21 and 22 of the Architects and Quantity Surveyors Act (Cap 525), its Code of Conduct Rules, and Section 52 of the National Construction Authority Act (No. 41 of 2011), the Applicant contended it faces severe exposure to professional liability, statutory penalties, and reputational damage should construction proceed to completion using its unacknowledged designs. 19.The Applicant also contended that the balance of convenience overwhelmingly favours maintaining the status quo, citing Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma [2020] eKLR to argue that denying the injunction would extinguish the Applicant's professional rights and render the substantive suit nugatory, whereas granting it would only cause the Respondent a temporary delay. 20.Further relying on Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR and Order 40 Rule 1 of the Civil Procedure Rules, and noting that prior Court-Annexed Mediation had collapsed due to the Respondent's non-commitment, the Court was urged to protect the integrity of the dispute and allow the Notice of Motion dated 1st October 2025 with costs. Respondent’s Submissions 21.The Respondent submitted that an applicant must satisfy the sequential three-fold test in Giella vs Cassman Brown & Co. Limited (1973) E.A. 358, as reaffirmed in Faith Wairimu Gitau vs Rigathi Gachagua [2026] KEHC 2183 (KLR). Reaffirming its Replying Affidavit, the Respondent argued that the Applicant failed to satisfy any of these conditions. 22.It was further submitted that the Applicant failed to establish a prima facie case because its claim of Kshs. 23,173,953.00/= is based on an unproven contract sum of Kshs. 320,595,740/=. The Respondent maintained that the fees were explicitly pegged to the agreed sum of Kshs. 249,480,000/=, leaving the current claim without any contractual basis. 23.The Respondent further maintained that the Applicant will not suffer irreparable harm. It argued that the claim consists entirely of a commercial debt for consultancy fees quantified in clear numerical terms. Because the alleged harm is purely financial and capable of exact calculation, it is not irreparable and must await final trial adjudication. 24.The Respondent also contended that the balance of probabilities tilts against the Applicant because the substratum of the claim is a debt recovery matter. The Respondent asserted that utilizing a property preservation application for a fee dispute is legally misplaced. On those grounds, the Court was urged to dismiss the application with costs. Issues For Determination 25.Having considered the Notice of Motion, the affidavits on record and the rival submissions by the parties, the issues that arise for determination are: -a.Whether the Applicant has satisfied the threshold for the grant of interlocutory injunctive relief pending the hearing and determination of the suit.b.Whether the Applicant is entitled to the ancillary reliefs sought in the Notice of Motion dated 28th July 2025 at this interlocutory stage.c.Who should bear the costs of the application. Analysis And Determination (i) Whether the Applicant has satisfied the threshold for the grant of interlocutory injunctive relief pending the hearing and determination of the suit 26.The two applications principally seek orders restraining the Respondent from continuing with construction works on L.R. No. 13466 Kasarani pending determination of the suit. The principles governing the grant of interlocutory injunctions are now settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court held that an applicant must establish:a.a prima facie case with a probability of success;b.that he stands to suffer irreparable injury which cannot adequately be compensated by an award of damages; andc.if the court is in doubt, it will determine the application on a balance of convenience. 27.These conditions are sequential rather than conjunctive. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal emphasized that if an applicant fails to establish a prima facie case, the court need not proceed to consider irreparable injury or the balance of convenience. The Court stated that the three requirements "are to be applied as separate, distinct and logical hurdles." (a) Whether the Applicant has established a prima facie case 28.The meaning of 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 is 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 that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal.” 29.The Applicant relies on the Consultancy Agreement executed between the parties and contends that it remains the duly appointed consultant for the project. It argues that following the collapse of Court-Annexed Mediation, the Respondent resumed construction while continuing to utilize the Applicant's architectural drawings without formally terminating the consultancy relationship. According to the Applicant, this exposes it to professional liability under the Architects and Quantity Surveyors Act and the National Construction Authority Act while simultaneously denying it consultancy fees allegedly amounting to Kshs.23,173,953/=. 30.The Respondent, however, disputes the Applicant's entire factual foundation. It maintains that the consultancy fee was expressly negotiated at 5% of the agreed project value of Kshs.249,480,000/=; that it has already paid Kshs.8,228,572/=; that the Applicant voluntarily suspended its services pending payment of an additional Kshs.10,000,000/=; and that no replacement consultants have been appointed. The Respondent equally disputes the computation of the alleged outstanding fees and contends that the Applicant's claim is nothing more than a disputed commercial debt. 31.The Court has carefully considered these rival positions. While it is not disputed that the parties entered into a consultancy agreement, virtually every other material fact remains contested. The Court is invited to determine whether the consultancy relationship subsists, whether the Applicant was lawfully disengaged, whether the Respondent is utilizing the Applicant's professional designs, whether another consultant has been appointed, and whether consultancy fees in excess of Kshs.23 million are due. 32.These are substantive issues of fact and contractual interpretation which cannot properly be determined upon affidavit evidence. In Airland Tours & Travels Ltd v National Industrial Credit Bank, HCCC No.1234 of 2002, Ringera J. stated:-“In an interlocutory application, the court is not required to make any conclusive or definitive findings of facts or law, most certainly not on the basis of contradictory affidavit evidence or disputed propositions of law.” 33.Similarly, in Edwin Kamau Muniu v Barclays Bank of Kenya Ltd, Nairobi HCCC No. 1118 of 2002, the court held that:“In an interlocutory application, the court is not required to determine the very issues which will be canvassed at the trial with finality. All the court is entitled at that stage is to determine whether the Applicant is entitled to an injunction sought on the usual criteria….” 34.The Court further notes that the primary dispute disclosed by the pleadings concerns the parties' contractual rights and obligations under the Consultancy Agreement and the recovery of consultancy fees. Those questions remain for determination at the hearing. 35.The Applicant has undoubtedly demonstrated that there exists a serious dispute between the parties. However, as observed by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, a prima facie case is not established merely because a dispute exists; rather, the applicant must demonstrate an apparent infringement of a legal right requiring protection. 36.On the material presently before Court, that threshold has not been met. The alleged infringement remains heavily contested and can only be resolved through tested evidence. 37.The Court therefore finds that the Applicant has failed to establish a prima facie case with a probability of success. 38.It is also significant that, at its core, the Applicant’s claim reduces to a dispute over the quantum of professional fees said to be due under the Consultancy Agreement, the Applicant contending for Kshs. 23,173,953/=, and the Respondent maintaining that a considerably smaller sum, if any, remains outstanding under the 5% fee structure. Disputes of this character, turning on the computation of sums allegedly owed under a contract, have consistently been held not to furnish a proper basis for injunctive relief. In Francis J.K. Ichatha v Housing Finance Company of Kenya Ltd [2005] eKLR, the Court of Appeal held that a disagreement over the correct amount due under an agreement does not, without more, justify the grant of an injunction, since the aggrieved party’s remedy lies in an award of damages or a decree for the sum properly found to be due after a full hearing. 39.The authorities relied upon by the Applicant to justify halting the ongoing construction are Kibira & 3 Others v Njoroge & 3 Others [2024] KEELC 381 (KLR) and Seii & 10 Others v Nairobi City County Government & 8 Others [2024] KECA 1929 (KLR) which, with respect are distinguishable. Those cases concerned disputes touching directly on proprietary or development rights in and over the land in question, where the applicants’ own title, occupation, or planning entitlements stood to be prejudiced by the impugned construction. The present dispute does not implicate the Applicant’s title to or interest in L.R. No. 13466 Kasarani; it concerns only the separate and severable question of professional fees said to be owing under a consultancy contract. That distinction is material, for it confirms that the underlying grievance is compensable in damages and does not touch the subject matter of the suit in the manner necessary to warrant an injunction. (b) Whether irreparable injury has been demonstrated 40.Even assuming that a prima facie case had been established, the Applicant must demonstrate that damages would not constitute an adequate remedy. 41.The Applicant contends that it will suffer irreparable harm because the Respondent continues to utilize its architectural designs, thereby exposing it to professional liability, reputational damage and possible statutory sanctions. However, these allegations have not been supported by evidence demonstrating that disciplinary proceedings have been commenced or that such liability is imminent. The Applicant's principal claim remains one for recovery of professional fees quantified at Kshs. 23,173,953/=. Such loss is capable of being compensated by an award of damages should the Applicant ultimately succeed. 42.In the case of Nguruman Limited Vs Jan Bonde Nielsen & 2 Others (2014) eKLR, the Court of Appeal further explained that: -“...these are the three pillars on which rest the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially... if the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted will be irreparable. In other words, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage.If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.” 43.This conclusion is reinforced by the settled principle that irreparable injury, for purposes of interlocutory relief, means injury that cannot be adequately atoned for in damages, and not merely injury that is inconvenient or regrettable. In Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] 1 EA 86, a principle reaffirmed by the Court of Appeal in Surekha Hasmukhlal Devshi Shah & Another v Investments & Mortgages Bank Limited [2019] KECA 48 (KLR), the Court held that an applicant must furnish real and tangible evidence that the loss in question cannot be quantified in monetary terms, and that where the value of the loss can be ascertained and the respondent is capable of meeting it, an injunction ought not ordinarily to issue. Here, the Applicant’s own pleadings quantify its claim to the last shilling, Kshs. 23,173,953/= which is itself the surest indication that whatever loss it may ultimately be found to have suffered is entirely capable of computation and compensation in damages. 44.As to the Applicant’s apprehension of professional liability under the Architects and Quantity Surveyors Act and the National Construction Authority Act, the Court notes that no evidence was placed before it of any disciplinary complaint lodged, investigation commenced, or sanction threatened by either body. An apprehended or speculative liability, unsupported by evidence that it is imminent, does not amount to the irreparable injury the law requires. It remains open to the Applicant to place such evidence before the trial court, and to seek any protective order appropriate at that stage should the threat materialise. 45.The Court is therefore unable to conclude that the Applicant has demonstrated irreparable harm. (c) Balance of convenience 46.Were the Court to entertain any doubt, the balance of convenience would still favour the Respondent. 47.The Respondent has explained that construction of the prayer and conference centre is entirely donor-funded and has already suffered considerable delays due to lack of finances. Halting the project pending determination of the suit would occasion significant prejudice and further delay completion of the development. 48.Conversely, should the Applicant succeed at trial, its contractual and pecuniary claims remain capable of compensation by an award of damages together with any other appropriate relief. 49.This Court therefore agrees with the observations of the Court in Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR where it defined “balance of convenience” as follows: -“The meaning of balance of convenience tilting in favour of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience, it is really the balance of inconvenience, and it is for the plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the defendants. Inconvenience being equal, it is the plaintiff who will suffer.” 50.This is not merely a private commercial inconvenience. Where, as here, the works in question serve a charitable and religious purpose intended to benefit a wide and indeterminate class of worshippers and the public, an interlocutory order halting construction visits its heaviest cost not on the named Respondent alone but on that broader body of intended beneficiaries who are not before the Court and cannot be heard. That consideration reinforces, rather than displaces, the ordinary rule that where the Applicant’s prejudice is compensable in money, the balance tips firmly against injunctive relief. 51.In the circumstances of this case, that course favours allowing construction to proceed while preserving the Applicant's contractual claims for determination at trial. 52.Accordingly, the Applicant has failed to satisfy the requirements for grant of interlocutory injunctive relief. (ii) Whether the Applicant is entitled to the ancillary reliefs sought in the Notice of Motion dated 28th July 2025 53.The Notice of Motion dated 28th July 2025 also seeks substantive orders compelling the Respondent to pay Kshs.23,173,953/=, declarations that the Respondent breached the Consultancy Agreement, and damages for the alleged breach. 54.Those prayers constitute the substantive reliefs sought in the suit itself. Granting them at an interlocutory stage would effectively determine the dispute without the benefit of a full hearing. 55.The law is settled that interlocutory applications are intended to preserve the subject matter pending trial and not to finally determine contested rights. In Mbuthia v Jimba Credit Finance Corporation & Another [1988] KLR 1, the Court of Appeal held that the function of an interlocutory injunction is to preserve the property in dispute until the rights of the parties can be determined at trial. 56.To grant the declarations and monetary award sought would, moreover, require this Court to resolve, on affidavit evidence alone, the very questions already identified as being genuinely in dispute: the true fee payable under the Consultancy Agreement, the extent of payments already made, and whether the Applicant was lawfully or voluntarily disengaged. These are matters properly reserved for trial, where the parties may lead viva voce evidence, be cross-examined, and have their credibility tested. To pre-empt that process at the interlocutory stage would, as this Court has already observed in relation to Airland Tours & Travels Ltd v National Industrial Credit Bank (supra), amount to making conclusive findings of fact and law which the interlocutory process does not permit. 57.Accordingly, the Court declines to grant the substantive declaratory and monetary reliefs sought in the application dated 28th July 2025. (iii) Who should bear the costs of the applications 58.Section 27(1) of the Civil Procedure Act (Cap 21) vests this Court with full discretion as to costs, providing that the costs of and incidental to all suits shall follow the event unless the Court, for good reason, directs otherwise. The Supreme Court, in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, Petition No. 4 of 2012, [2014] eKLR, affirmed that this discretion, though wide, must be exercised judicially, and that any departure from the ordinary rule that costs follow the event requires good reason shown on the record. 59.In the present case, while both Notices of Motion have failed to meet the threshold for interlocutory injunctive relief, the Court is mindful that they were not frivolous: they arose from a genuine and unresolved commercial dispute over consultancy fees said to exceed Kshs. 23 million, compounded by the collapse of court-annexed mediation and by rival, untried claims as to whether the Applicant’s professional services remain engaged. The merits of that underlying dispute — including the correct fee payable and whether it has been discharged — are yet to be tried, and the substantive suit between the parties remains pending. In these circumstances, the Court considers it appropriate that the costs of both applications should abide the outcome of the main suit, rather than be visited on either party at this interlocutory stage. Disposition 60.In light of the foregoing, the Court finds that neither the Notice of Motion dated 28th July 2025 nor the Notice of Motion dated 1st October 2025 satisfies the legal threshold for the grant of interlocutory injunctive relief. 61.Consequently, the Court makes the following orders:a.The Notice of Motion dated 28th July 2025 is hereby dismissed.b.The Notice of Motion dated 1st October 2025 is similarly dismissed.c.The costs of both applications shall abide the outcome of the main suit. DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JULY, 2026.BENARD WAFULA MURUNGAJUDGEDelivered on virtual platform in the presence of:Babu instructed by Cyrus Babu for the Applicant/PlaintiffSiboe instructed by Cheptumo & Co. for the Respondent/DefendantKevin Babu - Court Assistant