Jonathan David Mturi and Patience Sikuku Mturi came to this court seeking orders that pending the hearing and determination of this suit, this honourable court be pleased to issue a stay of Notice of Eviction dated 4th July 2025 issued by the Intended Defendant and to restrain the Intended Defendant herein or their servants, and/or employees and/or authorized agents, or any other person acting on their behalf from evicting the Plaintiff/ Applicants and their lawful occupants, form the property known as C.R. 18746, Subdivision Nos4112, Section I, Mainland North Mombasa which measures approximately 0.4133 hectares.
The applicants further apply that this Honourable Court be pleased to cite Advocate Pareno Solonka and Ravji Karsan Sanghani for contempt of court in accordance with Section 27 (b) of the contempt of Court Act, Cap. 8 Laws of Kenya for willfully and without lawful excuse disobeying the court order issued by this honourable court on 9th July 2025 and accord sanctions prescribed under Section 2b (I) of the Contempt of Court Act, Cap. 8 Laws of Kenya. That costs of this application be provided for.
The application is based on grounds that the Plaintiffs/Applicants filed an application seeking a stay of the eviction orders issued by the Defendant on 23rd May 2025 pending determination of the instant suit, which this court granted on 9th July 2025.
The advocate on record for the Defendant and Intended Defendant who issued the eviction notice dated 23rd May 2025 on behalf of the Defendant therefore are a gents for the Defendant in accordance with Order 9, Rule 1 of the Civil Procedure Rues and have caused the Intended Defendant to issue an eviction notice in blatant disregard of the express orders of the Court issued on 9th July 2025.
That despite the prevailing court order, the Intended Defendant Ravji Karsan Sanghani has now issued an eviction notice dated 4th July 2025 which was forwarded by their advocate M/s. Solonka and Solonka Advocates via email.
That in addition, the title document is fraught with illegalities and procedural irregularities as explicated by the Plaintiff/Applicants replying affidavit in response to Intended Defendant’s application in which the 1st Plaintiff/ Applicant categorically states that Ravji Karsan Sanghani, the intended Defendant was guilty of lack of candour for the reasons that Diamond Trust Bank Kenya Limited in the suit MSA High Court Commercial Suit No. E003 of 2025 Jonathan D. Mturi and another vs, Diamond Trust bank Kenya Limited and another produced a Memorandum of Sale indicating that the suit property has been auctioned to one Ravji Karsan Sanghani and one Harishchandra Gajpara, yet Harishchandra Gajpara was not included as an intended Defendant.
The applicant states that the Intended Defendant attached a document indicating that the transfer of funds was effected by a Lalji Bhimji K. Sanghani and they failed to establish a nexus between Ravji Karsan Sanghani and one Harishchandra Gajpara indicated in the memorandum of sale and Lalji Bhimji K. Sanghani who effected the transfer of funds.Furthermore that the Intended Defendant by their own confession instigated the issuance of the eviction notice by the defendant yet they knew full well that the Defendant lacked the Legal capacity to issue the notice.
The Intended Defendant has now attached a title document and a postal search showing that the title is registered in the names of Ravji Karsan Sanghani and Kantilal Lalji Bhimji Sanghani, which are distinct names from those included in the memorandum of sale which was availed by the Diamond Trust Bank Kenya Limited.
The applicants contend that the Intended Defendant contravened express provisions of the law by failing to have a sale agreement for the disposition of an interest in land in writing in accordance with Section 3 (2) of the Law of Contract Act and failing to have each party execute the documents pursuant to Section 43 and 44 of the Land Registration Act.
The applicants state that Justice Florence Wangari in her ruling in High Court Commercial Case No, E003 of 2025 delivered on '13th March 2025 recognized that Diamond Trust Bank Kenya flouted Section 97 of the Land Act (2012) (by conducting an auction and failing to have valid valuation of the property at the time of the sale.
That in High Court Commercial Case Number E.003 of 2025, they attached the valuation report indicating that the fair market value of the suit property is Kenya Shillings One Hundred and Thirty Million (Kshs. 130,000,000) while the forced sale value being Kenya Shillings Ninety-Seven million, Five Hundred Thousand hence the Bank contravened Section 97 of the Land Act by selling it at Kenya Shillings Seventy-Two Million (Kshs. 72,000,000).
The title passed by the bank is therefore not a good title as it is contrary to the law since it was sold below the forced sale value and therefore the title was a legal nullity, in accordance with Section 261 (b) of the Land Registration Act.
The eviction notice issued by Ravji Karsan Sanghani is not only issued in contempt of orders given by this honourable court but also issued only in the name of Ravji Karsan Sanghani, and as result is defective by virtue of Section 152E of the Land Act, which expressly asserts that the owners ought to issue the eviction notice.
The applicants state that there an active appeal in the Court of Appeal has been filed and the record of appeal has been registered as E142 of 2025. The court has issued directions and they are currently waiting for an allocation of the date of hearing the appeal. If orders are not granted, they would suffer irreparable loss, the eviction will happen without trial that is enshrined under Article 50 of the Constitution of Kenya.
The Court has appreciated that the Plaintiff has a strong meritorious case by virtue of granting the orders prayed for in their application dated 22nd May 2025 and therefore they pray that the same should be extended in the instant application. The applicants state that no prejudice shall be occasioned to the Defendant if the prayers sought therein by the Plaintiff are granted.
That on the other hand, prejudice shall be occasioned to the applicant if the prayers sought therein by the Plaintiff/applicant are granted. That it is imperative and in the interest of justice that the orders prayed for herein are granted. The supporting affidavit reiterates to grounds of the application.
The 2nd defendant filed a replying affidavit stating that the entity sued by the plaintiffs is non-existent entity that lacks legal capacity to sue or be sued. The injunction orders on 9.7.2025 were issued against a non-existent entity that was not registered at the time of filing suit.
The property is registered in his name in his personal capacity. The 2nd defendant states that he is under no legal obligation to transfer the property to the 1st defendant. The import of the 2nd defendant affidavit is that the order of 9.7.2025 does not affect him.
The 2nd defendant states that he is the indefeasible registered owner of the suit property and therefore vested with all register to recover the property from persons wrongfully in possession. He issued notice on 4.7.2025 for eviction of the plaintiffs. The 2nd defendant states that the allegations of undervaluation of the property is irrelevant and misplaced. He states that he is a bonafide purchaser for value following a lawful auction conducted by Diamond Trust Bank pursuant to a statutory power of sale.
The 2nd defendant states that he was not party to the previous transactions between the plaintiff, Bank and the auctioneer. The High Court in Mombasa HCCC No. E003 OF 2025 upheld the auction process. These issues raised by the plaintiff are res-judicata. He urges the court to dismiss the application.
I have considered the application, reply and rival submissions and do re-state as in other such cases that the criteria for granting injunctive orders sought was well explained in the foundational case for interlocutory (temporary) injunctions referred to as Giella v Cassman Brown Co. Ltd [1963] EA 358. The applicant must prove:
1. A prima facie case with a probability of success.
2. Irreparable injury that cannot be compensated by damages.
3. If in doubt, the balance of convenience tilts in their favor.
Temporary injunctions are granted if property in dispute is in danger of being wasted, damaged, or alienated by any party.
In Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR the court clarified that a "prima facie case" is more than an arguable case, requiring the applicant to show a case that, if not challenged, would lead to a judgment in their favor. In this case, I do find that the applicants have not established a prima facie case with a likelihood of success.
The horse has bolted as the applicants have already been evicted and are not in possession. It would create an absurdity to grant an order of stay when they have already been evicted.
Moreover, the Diamond Trust Bank has already sold the property through an auction and that the property has been transferred to the 2nd defendant. The proceeds of the sale have already been released to the bank which is not a party in this case. The 2nd defendant had no duty to value the property as a purchaser in an auction and therefore cannot be blamed for undervaluation. The 2nd defendant is the registered owner of the property and therefore have the right to issue a notice under section 152E of the Land Act.
On the issue of irreparable loss, I do find that the plaintiffs have not demonstrated the irreparable loss likely to be suffered that cannot be compensated with damages. On balance of inconvenience, the 2nd defendant is likely to suffer greater inconvenience if injunction is not granted because as a registered owner he will be prevented from enjoying the use of the property.
The applicants are not likely to suffer greater inconvenience than the 2nd defendant because the property has already been sold for nonpayment of a loan which they took and never paid that led to the property being sold to the 2nd plaintiff. The plaintiff rights to redeem the property has already been extinguished. Application for stay of eviction is dismissed.
The 2nd prayer in the application is for orders that the 2nd defendant and the advocate Solonka should be punished for contempt of court for disobedience of orders made on 9.7.2025.
Contempt of court means willful disobedience of court orders, particularly in civil matters. This must be proved to a standard higher than the balance of probabilities, almost reaching "beyond reasonable doubt". There is need for precision of the breached order, personal service of the order or knowledge of the order.
This court finds that the said court order was made against the 1st defendant who is a non-entity and cannot be sued and therefore the order was unenforceable and a nullity as brought against a non-existent person. The 2nd defendant was not a party and therefore the order did not affect him. The entire application is dismissed with costs.
RULING DATED, SIGNED AND DELIVERED ELECTRONICALLY AT MOMBASA THIS 28TH DAY OF APRIL 2026.