https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4781

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCLC/E130/2025 ZAKARIA MOHAMED SHEIKH BANA VS OSMAN MAALIM ALIAS OMAR AHMED MOHAMED RULING Zakaria Mohamed Sheikh Bana (hereinafter referred to as the Applicant), has come to this court by the Notice of Motion dated the 10th day of November, 2025 seeking orders that pending hearing and determination of the main suit, Osman Maalim alias Omar Ahmed Mohammed (hereinafter referred to as the Respondent), his agents or servants be restrained from selling, transferring, charging, leasing, disposing of, otherwise dealing with any of the units developed on MOMBASA/BLOCK/XVII/IIIO without full disclosure and written consent of the Applicant and that pending hearing and determination of the main suit, the Respondent be compelled to preserve all proceeds from any ongoing or future sale of units in the Suit Property, and to deposit the same in an escrow and/joint account held in the names of both parties or as directed by the Court. He further seeks orders that pending the hearing and determination of the main suit, the Respondent be compelled to keep and maintain true, accurate and verifiable records of all units sold, sale agreements, sale prices, monies received, expenditures, construction costs and operational costs and profit realized. He prays that pending the hearing and determination of the main suit, the Respondent be restrained from interfering with the Applicant's contractual and proprietary interest, participation rights or management involvement in the developed property and its proceeds. He prays that costs of the Application be provided for. The Applicant averred that pursuant to Share Development Agreement between the parties herein, the Applicant invested a sum of Kenya Shillings Forty Million (Kshs.40,000,000/=) towards the development of the suit property into 40 apartments, 1 penthouse and 4 shops. It was agreed that upon the completion of the said development, parties herein shall evenly share the realized profit from the sale of the units. The development is now complete, however, but the Respondent has unlawfully denied the Applicant access to the property. The Respondent has since refunded the Applicant a sum of Kenya Shillings Thirty Million (Kshs. 30,000,000/=) leaving an outstanding balance of Kenya Shillings Ten Million (Kshs. 10,000,000/=)Despite repeated demands, the Respondent has failed, refused and/or neglected to render accounts, disclose records, or demonstrate transparency. The respondent, Omar Ahmed Mohamed, states that contrary to the Applicant's assertion that he approached him pursuant to a written agreement, it was the Respondent, who approached the Applicant with a business proposal regarding a development opportunity that was set to commence in the year 2022. That the respondent proposed to the Applicant a partnership arrangement whereby he would contribute a sum of Kenya Shillings Forty Million (Kshs. towards the development of apartments on the suit property known as MOMBASA/BLOCK/XVII/IIIO, and upon completion and sale of the apartments, they would split the profits on a 50:50 basis. It was agreed that the Respondent, would be responsible for conducting the sale of the completed apartments, as he had the necessary expertise and contacts in the real estate industry. Prior to entering into this partnership arrangement with the Applicant, he had already entered into a joint venture agreement with the owners of the parcel of land, namely Amina and Omar, for the development of the suit property into residential apartments. The Applicant's claim that he invested a sum of Kenya Shillings Forty Million (Kshs. 40,000,000/=) is false and misleading. The true position is that from 10th March 2022 to 6th April 2022, the Applicant had only deposited a sum of Kenya Shillings Fourteen Million Four Hundred and Ninety-Nine Thousand (Kshs. 14,499,000/=) to the client account at Swaleh & Co. Advocates. On 14th April 2022, the Applicant withdrew a sum of Kenya Shillings Six Million Four Hundred and Ninety-Nine Thousand (Kshs. 6,499,000/ =) from the said client account, thereby reducing his contribution to the development. That during the period from 15th January 2024 to 17th January 2024, the Applicant made further withdrawals totaling Kenya Shillings Three Million (Kshs. 3,000,000/=) from the development funds and that as a direct result of these withdrawals, the development was significantly stalled, and the Respondent, was forced to seek alternative sources of funding to ensure the completion of the project. That contrary to the Applicant's claim that he contributed Kenya Shillings Forty Million (Kshs. 40,000,000/=), the actual total contribution made by the Applicant towards the development was only Kenya Shillings Thirty-Five Million Six Hundred and Seventy-Two Thousand Four Hundred (Kshs. 35,672,400/=), which is significantly less than the agreed sum of Kshs. 40,000,000/= The Applicant's failure to honor his commitment to contribute the full sum of Kenya Shillings Forty Million (Kshs. 40,000,000/= as agreed constitutes a clear and fundamental breach of the partnership agreement. The respondent states that upon completion of the development, the Applicant took possession of one shop unit valued at Kenya Shillings Three Million Eight Hundred Thousand (Kshs. 3,800,000/=) and one 2-bedroom apartment numbered 1 IC valued at Kenya Shillings Four Million Five Hundred Thousand (Kshs. 4,500,000/=) without making any payment whatsoever for these properties. The combined value of the shop and apartment taken by the Applicant is Kenya Shillings Eight Million Three Hundred Thousand (Kshs. 8,300,000/=), which represents a substantial benefit derived by the Applicant from the development. The respondent has not refused, failed, or neglected to render accounts, provide lists of units sold, sale agreements, purchase prices, or details of the development profit realized or expenditures incurred. The Applicant has consistently failed to follow the proper channels to obtain this information from Swaleh & Co. Advocates where it is held. He urges this Honourable Court to dismiss the Applicant's Notice of Motion dated 24th November 2025 with costs, and to allow the matter to proceed to a full inter-partes hearing where the true facts and evidence can be properly canvassed and determined. I have considered the affidavits and submissions on record and do find that the orders are for the restraining the Respondent from interfering with the Applicant's proprietary and contractual interests in the development erected on MOMBASA/BLOCK/XVII/ 1110, and further seeks preservation orders pending hearing and determination of the main suit. The principles for grant of injunction are succinctly captured in the case of Giella v Casman Brown (1973) D.A. 358 (hereinafter referred to as 'Giella case') where the court has laid out standards to be met as follows:- 1. The Application must show a prima facie case 2. The Applicant must show that the Applicant will suffer irreparable injury if not for the grant of the injunction 3. If the Court is in doubt it has to decide matter on balance of convenience. This court is satisfied that the application is neither vexatious nor frivolous, In the present case, the parties herein, entered into a Share Development Agreement dated the 7th day of February, 2022 with the Applicant allegedly investing a total sum of Kenya Shillings Forty Million (Kshs.40,000,000/=) into the development of the suit property. Further, it was agreed that upon the completion of the above into 40 apartments, the parties shall share the profit realized equally between themselves. The Respondent does not deny the existence of the partnership agreement. . I have considered the evidence and submissions on record and do find that the plaintiff has demonstrated a prima facie case with a likelihood of success pursuant to demonstration that they had a share development agreement between the wherein the Applicant invested a sum of Kenya Shillings Forty Million (Kshs.40,000,000/=) towards the development of the suit property into 40 apartments, 1 penthouse and 4 shops. It was agreed that upon the completion of the said development, parties herein shall evenly share the realized profit from the sale of the units. Moreover, the applicant is likely to suffer irreparable loss if injunction is not granted as he will lose his investment in the project. On a balance of convenience, this court finds that it is the applicant who is likely to suffer great inconvenience if an injunction is not granted. I do grant the orders sought in the application. The applicant and the respondent to open an escrow account in a bank of repute in the names of advocates for the two parties and deposit the proceeds of sale in the said bank account pending the hearing and determination of the case. Matter to proceed for hearing on the 19th of December 2026. Mention on 29th September 2026. Costs be in the cause. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-07-24 15:35:07