1. The Plaintiffs / applicants filed the Notice of Motion dated 19th June 2025 under Articles 40 and 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rules 1 and 2, Order 51 Rule 1 of the Civil Procedure Rules, and all other enabling provisions of the law.
2. The Plaintiffs seek, inter alia, orders of substituted service and temporary injunctive orders restraining the Defendants, their agents, advocates, auctioneers or any other persons acting on their behalf from proceeding with execution, attachment, sale or enforcement of any decree or judgment against South Nyanza Sugar Company Limited, the 2nd Plaintiff herein, in respect of the matters listed in the application. The Plaintiffs also seek what they describe as an interim freezing order suspending all ongoing and intended execution or enforcement proceedings relating to South Nyanza Sugar Company Limited across all courts or tribunals in Kenya pending the hearing and determination of the suit.
3. The application is supported by the affidavit of Ali Ahmed Taib sworn on 19th June 2025. He describes himself as the Managing Director of the 1st Plaintiff. He deposes that the Government of Kenya leased South Nyanza Sugar Company Limited to the 1st Plaintiff for a period of thirty years as part of efforts to revive the sugar sector. He states that the 1st Plaintiff participated in the tender process and was notified by the Ministry of Agriculture and Livestock Development that it was the successful bidder. A lease was thereafter executed on 23rd April 2025.
4. The deponent states that it was a term of the lease that the Government would pay all outstanding debts, including farmers’ dues, employees’ salary arrears, creditors’ claims and all contingent liabilities accrued prior to the leasing. He further states that a six-month transition period was agreed upon to enable the parties to define their respective roles and obligations.
5. The Plaintiffs’ case is that during the transition process, it emerged that the 2nd Plaintiff has numerous claims filed in different courts across the country, some concluded, some ongoing and others at execution stage. The Plaintiffs contend that unless execution is stayed, the Defendants may attach and sell assets that have been leased to the 1st Plaintiff, thereby disrupting the revival of the 2nd Plaintiff and undermining public interest, the livelihoods of workers and the economy of the region.
6. The Plaintiffs therefore urge the Court to preserve the assets and operations of the 2nd Plaintiff pending completion of the audit and alignment of the affairs of the 1st and 2nd Plaintiffs.
7. The application was vehemently opposed by the Respondents/Defendants, who filed grounds of opposition and a replying affidavit sworn by Andrew O. Maganda, the 22nd Defendant, on 5th September 2025. The Respondents contend that they are decree-holders or successful litigants in suits which were heard and determined through due process. They emphasise that they are not parties to the lease agreement between the Plaintiffs and/or the Government, and that the terms of that agreement cannot affect or bind them.
8. They further contend that the Plaintiffs seek, through a new suit, to halt execution of lawful decrees issued by courts of competent jurisdiction. They argue that the application is an abuse of the court process, violates their right to property and access to justice, and seeks to deny them the fruits of their judgments.
9. The Defendants further argue that this Court has no jurisdiction to injunct or stay lawful judgments and decrees issued in other proceedings which have not been placed before it by way of appeal, review or any other lawful process. They submit that if the 2nd Plaintiff was aggrieved by the decrees or execution proceedings, it ought to have moved the respective courts in the ordinary manner known to law.
10. I have carefully considered the Notice of Motion, the supporting affidavit, the plaint, the replying affidavit, the grounds of opposition, the defence, the authorities supplied and the rival positions taken by the parties. In my view, the following issues arise for determination:
a. Whether this Court has jurisdiction, in the present suit, to grant a blanket stay or injunction against execution of decrees issued in other suits;
b. Whether the Plaintiffs have met the threshold for the grant of a temporary injunction; and
c. Whether the orders sought should issue.
11. Jurisdiction is the foundation of every case and it is trite law that where a court has no jurisdiction, it must lay down its tools. This principle was firmly stated in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1.
12. The orders sought by the Plaintiffs are not ordinary preservatory orders over a specific property in dispute between the parties. They are orders intended to halt execution of numerous decrees and judgments issued in separate suits before different courts in Kenya, including subordinate courts and the High Court. Some of those matters have proceeded through trial, judgment and appeal, and are now pending execution.
13. A decree-holder is entitled to enjoy the fruits of his or her judgment. Execution is the lawful process through which a successful litigant realises the benefit of a decree. Where a judgment-debtor seeks stay of execution, the law provides the manner in which such stay is to be sought. Under Order 42 Rule 6 of the Civil Procedure Rules, stay pending appeal is sought in the suit or appeal in which the decree arises, upon satisfaction of the conditions set out therein. Further, where the issue concerns the execution, satisfaction, or discharge of a decree, Section 34 of the Civil Procedure Act requires that such questions be determined by the court executing the decree, and not by way of a separate suit.
14. The present suit is neither an appeal against the decrees listed in the Notice of Motion nor an application for review in the respective suits. It is a fresh suit seeking a blanket order freezing execution in many concluded and pending matters. In my view, that approach offends the structure of the Civil Procedure Act and the Civil Procedure Rules.
15. This Court cannot, through a fresh suit, sit as an appellate or supervisory execution court over decrees issued in other matters, some of which emanate from courts of concurrent jurisdiction. To do so would undermine finality of litigation and interfere with the authority of the courts that issued the decrees.
16. The Court appreciates the Plaintiffs/applicants argument that the leasing of the 2nd Plaintiff was intended to revamp it and streamline the sugar Industry which is in the interest of the public. Also that the Government has promised to clear the 2nd applicant’s outstanding debts, including farmers’ dues, employees’ arrears, creditors’ claims and contingent liabilities accrued prior to the lease. The doctrine of privity of contract remains applicable. A contract cannot impose burdens on persons who are not privy to it and public interest does not override decrees of competent courts without due process. It cannot be invoked to extinguish or indefinitely suspend accrued private rights, especially where the affected decree-holders are not parties to the lease agreement relied upon by the applicants as in the instant case .
18. I now turn to the prayer for temporary injunction. The principles governing the grant of interlocutory injunctions are settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358. An applicant must establish a prima facie case with a probability of success, demonstrate that he or she will suffer irreparable harm if the injunction is not granted, and, where the court is in doubt, show that the balance of convenience tilts in his or her favour. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal emphasised that these three conditions are sequential and separate.
19. A prima facie case was defined in the case Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 as a case which, on the evidence presented at an interlocutory stage , shows an apparent infringement of a right calling for an explanation or rebuttal from the opposite party.
20. The applicants do not dispute that the Defendants are decree-holders or litigants in matters involving the 2nd Plaintiff. They do not allege that the decrees were fraudulently obtained. The applicants are therefore asking this Court to restrain lawful decree-holders from executing decrees without challenging those decrees in the specific proceedings in which they were issued. The facts placed before this Court do not disclose a prima facie legal right against the Respondents/Defendants capable of protection by injunction in the present suit.
22. The alleged harm to the Plaintiffs is that execution may disrupt the leased assets and operations of the 2nd Plaintiff/applicant . That concern is not trivial. However, the Respondents’ right of access to justice under Article 48 of the Constitution also includes the right to realise the fruits of litigation.
23. I have weighed the Applicants’ position against the rights of the Respondents to enjoy the fruits of their judgments. I find that the Respondents’ accrued rights under lawful decrees cannot be defeated merely on the basis of apprehension arising from the lease arrangement.
24. The applicants have not shown that the alleged harm cannot be managed within the respective execution proceedings. In any event, the decrees in issue are money decrees which are quantifiable. The loss alleged by the Plaintiffs cannot therefore be said to be irreparable in the sense contemplated in Giella v Cassman Brown.
25. On the balance of convenience, the Respondents are holders of lawful decrees, while the Applicants rely on a subsequent lease agreement entered into with the Government for the takeover of the company for thirty years. The Respondents are not parties to that agreement and thus it cannot apply to them . The balance of convenience cannot favour the Applicants, who seek to postpone satisfaction of lawful decrees issued in different suits.
26. I also note that prayer (f) seeks suspension of all ongoing and intended execution or enforcement proceedings relating to South Nyanza Sugar Company Limited across all courts or tribunals in Kenya. That prayer is extremely wide. It is not confined to the Respondents before this Court. It would affect proceedings and parties not before this Court. It would also operate against courts and tribunals that are not parties to these proceedings. Such an order would be contrary to the principles of natural justice and institutional comity.
27. This court appreciates the public interest in reviving the 2nd Plaintiff. However, such revival must be pursued within the law. Restructuring , audit, lease arrangement or transition process cannot be used to defeat existing judgments without following the procedures prescribed by law. The Plaintiffs /applicants remain at liberty to negotiate settlement, seek appropriate orders in the respective files, or pursue any lawful restructuring mechanism available to them. However, the present application, as framed, cannot be granted.
28. Consequently, I find that this Court has not been properly moved to stay or injunct execution of the decrees listed in the Notice of Motion. I further find that the Plaintiffs have not established a prima facie case, have not shown irreparable injury of the kind contemplated in Giella v Cassman Brown, and have not demonstrated that the balance of convenience tilts in their favour.
29. In the result, the Notice of Motion dated 19th June 2025 is dismissed.
30. Costs of the application are awarded to the Respondents.
31. Mention on 30th July 2026 before Hon. Justice (Prof.) Sifuna for directions on the hearing of the main petition.
T. A. ODERA
JUDGE
2.6.26
Delivered Virtually Via Teams Platform on this 2nd day of June 2026 in the presence of Miss Gitonga for the 1st applicant for the applicants and Mr Oduk for the respondents and Court Assistant Busienei .
2. The Plaintiffs seek, inter alia, orders of substituted service and temporary injunctive orders restraining the Defendants, their agents, advocates, auctioneers or any other persons acting on their behalf from proceeding with execution, attachment, sale or enforcement of any decree or judgment against South Nyanza Sugar Company Limited, the 2nd Plaintiff herein, in respect of the matters listed in the application. The Plaintiffs also seek what they describe as an interim freezing order suspending all ongoing and intended execution or enforcement proceedings relating to South Nyanza Sugar Company Limited across all courts or tribunals in Kenya pending the hearing and determination of the suit.
3. The application is supported by the affidavit of Ali Ahmed Taib sworn on 19th June 2025. He describes himself as the Managing Director of the 1st Plaintiff. He deposes that the Government of Kenya leased South Nyanza Sugar Company Limited to the 1st Plaintiff for a period of thirty years as part of efforts to revive the sugar sector. He states that the 1st Plaintiff participated in the tender process and was notified by the Ministry of Agriculture and Livestock Development that it was the successful bidder. A lease was thereafter executed on 23rd April 2025.
4. The deponent states that it was a term of the lease that the Government would pay all outstanding debts, including farmers’ dues, employees’ salary arrears, creditors’ claims and all contingent liabilities accrued prior to the leasing. He further states that a six-month transition period was agreed upon to enable the parties to define their respective roles and obligations.
5. The Plaintiffs’ case is that during the transition process, it emerged that the 2nd Plaintiff has numerous claims filed in different courts across the country, some concluded, some ongoing and others at execution stage. The Plaintiffs contend that unless execution is stayed, the Defendants may attach and sell assets that have been leased to the 1st Plaintiff, thereby disrupting the revival of the 2nd Plaintiff and undermining public interest, the livelihoods of workers and the economy of the region.
6. The Plaintiffs therefore urge the Court to preserve the assets and operations of the 2nd Plaintiff pending completion of the audit and alignment of the affairs of the 1st and 2nd Plaintiffs.
7. The application was vehemently opposed by the Respondents/Defendants, who filed grounds of opposition and a replying affidavit sworn by Andrew O. Maganda, the 22nd Defendant, on 5th September 2025. The Respondents contend that they are decree-holders or successful litigants in suits which were heard and determined through due process. They emphasise that they are not parties to the lease agreement between the Plaintiffs and/or the Government, and that the terms of that agreement cannot affect or bind them.
8. They further contend that the Plaintiffs seek, through a new suit, to halt execution of lawful decrees issued by courts of competent jurisdiction. They argue that the application is an abuse of the court process, violates their right to property and access to justice, and seeks to deny them the fruits of their judgments.
9. The Defendants further argue that this Court has no jurisdiction to injunct or stay lawful judgments and decrees issued in other proceedings which have not been placed before it by way of appeal, review or any other lawful process. They submit that if the 2nd Plaintiff was aggrieved by the decrees or execution proceedings, it ought to have moved the respective courts in the ordinary manner known to law.
10. I have carefully considered the Notice of Motion, the supporting affidavit, the plaint, the replying affidavit, the grounds of opposition, the defence, the authorities supplied and the rival positions taken by the parties. In my view, the following issues arise for determination:
a. Whether this Court has jurisdiction, in the present suit, to grant a blanket stay or injunction against execution of decrees issued in other suits;
b. Whether the Plaintiffs have met the threshold for the grant of a temporary injunction; and
c. Whether the orders sought should issue.
11. Jurisdiction is the foundation of every case and it is trite law that where a court has no jurisdiction, it must lay down its tools. This principle was firmly stated in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1.
12. The orders sought by the Plaintiffs are not ordinary preservatory orders over a specific property in dispute between the parties. They are orders intended to halt execution of numerous decrees and judgments issued in separate suits before different courts in Kenya, including subordinate courts and the High Court. Some of those matters have proceeded through trial, judgment and appeal, and are now pending execution.
13. A decree-holder is entitled to enjoy the fruits of his or her judgment. Execution is the lawful process through which a successful litigant realises the benefit of a decree. Where a judgment-debtor seeks stay of execution, the law provides the manner in which such stay is to be sought. Under Order 42 Rule 6 of the Civil Procedure Rules, stay pending appeal is sought in the suit or appeal in which the decree arises, upon satisfaction of the conditions set out therein. Further, where the issue concerns the execution, satisfaction, or discharge of a decree, Section 34 of the Civil Procedure Act requires that such questions be determined by the court executing the decree, and not by way of a separate suit.
14. The present suit is neither an appeal against the decrees listed in the Notice of Motion nor an application for review in the respective suits. It is a fresh suit seeking a blanket order freezing execution in many concluded and pending matters. In my view, that approach offends the structure of the Civil Procedure Act and the Civil Procedure Rules.
15. This Court cannot, through a fresh suit, sit as an appellate or supervisory execution court over decrees issued in other matters, some of which emanate from courts of concurrent jurisdiction. To do so would undermine finality of litigation and interfere with the authority of the courts that issued the decrees.
16. The Court appreciates the Plaintiffs/applicants argument that the leasing of the 2nd Plaintiff was intended to revamp it and streamline the sugar Industry which is in the interest of the public. Also that the Government has promised to clear the 2nd applicant’s outstanding debts, including farmers’ dues, employees’ arrears, creditors’ claims and contingent liabilities accrued prior to the lease. The doctrine of privity of contract remains applicable. A contract cannot impose burdens on persons who are not privy to it and public interest does not override decrees of competent courts without due process. It cannot be invoked to extinguish or indefinitely suspend accrued private rights, especially where the affected decree-holders are not parties to the lease agreement relied upon by the applicants as in the instant case .
18. I now turn to the prayer for temporary injunction. The principles governing the grant of interlocutory injunctions are settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358. An applicant must establish a prima facie case with a probability of success, demonstrate that he or she will suffer irreparable harm if the injunction is not granted, and, where the court is in doubt, show that the balance of convenience tilts in his or her favour. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal emphasised that these three conditions are sequential and separate.
19. A prima facie case was defined in the case Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 as a case which, on the evidence presented at an interlocutory stage , shows an apparent infringement of a right calling for an explanation or rebuttal from the opposite party.
20. The applicants do not dispute that the Defendants are decree-holders or litigants in matters involving the 2nd Plaintiff. They do not allege that the decrees were fraudulently obtained. The applicants are therefore asking this Court to restrain lawful decree-holders from executing decrees without challenging those decrees in the specific proceedings in which they were issued. The facts placed before this Court do not disclose a prima facie legal right against the Respondents/Defendants capable of protection by injunction in the present suit.
22. The alleged harm to the Plaintiffs is that execution may disrupt the leased assets and operations of the 2nd Plaintiff/applicant . That concern is not trivial. However, the Respondents’ right of access to justice under Article 48 of the Constitution also includes the right to realise the fruits of litigation.
23. I have weighed the Applicants’ position against the rights of the Respondents to enjoy the fruits of their judgments. I find that the Respondents’ accrued rights under lawful decrees cannot be defeated merely on the basis of apprehension arising from the lease arrangement.
24. The applicants have not shown that the alleged harm cannot be managed within the respective execution proceedings. In any event, the decrees in issue are money decrees which are quantifiable. The loss alleged by the Plaintiffs cannot therefore be said to be irreparable in the sense contemplated in Giella v Cassman Brown.
25. On the balance of convenience, the Respondents are holders of lawful decrees, while the Applicants rely on a subsequent lease agreement entered into with the Government for the takeover of the company for thirty years. The Respondents are not parties to that agreement and thus it cannot apply to them . The balance of convenience cannot favour the Applicants, who seek to postpone satisfaction of lawful decrees issued in different suits.
26. I also note that prayer (f) seeks suspension of all ongoing and intended execution or enforcement proceedings relating to South Nyanza Sugar Company Limited across all courts or tribunals in Kenya. That prayer is extremely wide. It is not confined to the Respondents before this Court. It would affect proceedings and parties not before this Court. It would also operate against courts and tribunals that are not parties to these proceedings. Such an order would be contrary to the principles of natural justice and institutional comity.
27. This court appreciates the public interest in reviving the 2nd Plaintiff. However, such revival must be pursued within the law. Restructuring , audit, lease arrangement or transition process cannot be used to defeat existing judgments without following the procedures prescribed by law. The Plaintiffs /applicants remain at liberty to negotiate settlement, seek appropriate orders in the respective files, or pursue any lawful restructuring mechanism available to them. However, the present application, as framed, cannot be granted.
28. Consequently, I find that this Court has not been properly moved to stay or injunct execution of the decrees listed in the Notice of Motion. I further find that the Plaintiffs have not established a prima facie case, have not shown irreparable injury of the kind contemplated in Giella v Cassman Brown, and have not demonstrated that the balance of convenience tilts in their favour.
29. In the result, the Notice of Motion dated 19th June 2025 is dismissed.
30. Costs of the application are awarded to the Respondents.
31. Mention on 30th July 2026 before Hon. Justice (Prof.) Sifuna for directions on the hearing of the main petition.
T. A. ODERA
JUDGE
2.6.26
Delivered Virtually Via Teams Platform on this 2nd day of June 2026 in the presence of Miss Gitonga for the 1st applicant for the applicants and Mr Oduk for the respondents and Court Assistant Busienei .