Introduction
1. By a Notice of Motion dated 25th September 2025, brought under Order 40 of the Civil Procedure Rules and Section 534 of the Insolvency Act, the Plaintiff sought the following prayers, as set out on the face of the application:
1)This application be certified as urgent and heard ex parte in the first instance;
2)This Honourable Court be pleased to issue an injunction directing the 1st Defendant to immediately unblock and lift restriction(s) on the Plaintiff's bank account numbers 1148042059 and 1113083441 pending the hearing and determination of this application;
3) This Honourable Court be pleased to issue a temporary injunction restraining the 1st Defendant, its employees, representatives and/or agents, from restricting or blocking the Plaintiff, in any way, from operating any of its bank account numbers 1148042059 and 1113083441 pending the hearing and determination of this application;
4)This Honourable Court be pleased to issue a temporary injunction restraining the 1st and 2nd Defendants, their employees, representatives and/or agents from appointing any administrator(s) or receiver(s) to manage the Plaintiff pending the hearing and determination of this application;
5) This Honourable Court be pleased to issue a temporary injunction restraining the 1st Defendant, its employees, representatives and/or agents, from restricting or blocking the Plaintiff, in any way, from operating any of its bank account numbers 1148042059 and 1113083441 pending the hearing and determination of the suit;
6) This Honourable Court be pleased to issue a temporary injunction restraining the 1st and 2nd Defendants, their employees, representatives and/or agents from appointing any administrator(s) or receiver(s) to manage the Plaintiff pending the hearing and determination of the suit; and
7)Costs of this application be borne by the Defendants.
2. The application is supported by the affidavit of Rajinder Singh Baryan, sworn on 25th September 2025, and by a Supplementary Affidavit of the same deponent, sworn on 19th January 2026.
3. The application is opposed by both Defendants. The 1st Defendant relies on the Replying Affidavit of Bonaventure Lumula, sworn on 10th December 2025, and the 2nd Defendant on the Replying Affidavit of Kenneth Murithi Gitonga, sworn on 11th December 2025. All three parties filed written submissions, lists, and bundles of authorities, with the Plaintiff's dated 22nd January 2026 and the 1st and 2nd Defendants' each dated 25th February 2026.
Factual Background
4. The Plaintiff is a container-handling and freight logistics company based in Mombasa. It maintains banking relationships and credit facilities with both Defendants and is the majority shareholder in Multiple Hauliers (EA) Limited, a logistics entity.
5. The 1st Defendant advanced credit facilities to the Plaintiff under Letters of Offer dated 2nd June 2009 and 26th July 2011, secured successively by debentures dated 11th December 2009, 10th February 2012 and 22nd June 2015. By a demand letter dated 5th September 2024, the 1st Defendant notified the Plaintiff of arrears of US$30,801,979.14. As at 19th November 2025, the 1st Defendant avers that the total sum outstanding stood at approximately US$55,342,015, exclusive of default interest and other charges.
6. The 2nd Defendant advanced a Term Loan of US$24,000,000 pursuant to a Letter of Offer dated 8th January 2013, secured by a debenture dated 5th March 2013. By a letter dated 28th August 2024, Co-op Bank notified the Plaintiff of arrears of US$13,127,226.77 against a total outstanding of US$32,101,597.47. As at 20th November 2025, the sum outstanding stood at approximately US$32,361,973.20.
7. Each of the four debentures confers upon the relevant Defendant, in the event of default, the right to (i) control and restrict payments from the Plaintiff's accounts, (ii) consolidate and set off accounts, and (iii) appoint a receiver or manager over the charged assets. None of the four debentures refers to Section 534 of the Insolvency Act, 2015, as each was executed before the Act's commencement, and none purports to authorize the appointment of an administrator under that Act.
8. The Plaintiff's case, in outline, is that on 18th September 2025 it discovered that the 1st Respondent had blocked its two accounts without notice or reason; that cheques drawn in favour of Bongeni Energy Limited were delayed for several days during the same period; and that the 2nd Respondent had earlier, on 15th May 2024, unlawfully debited US$483,791.89 from its account. The Plaintiff further avers that its financial difficulties stem not from an unwillingness to pay but from a dispute between Multiple Hauliers (EA) Limited and its own lenders, which is the subject of Nairobi Insolvency Cause No. E022 of 2021 and London-seated London Court of International Arbitration arbitral proceedings. The Plaintiff avers that it is in advanced discussions with an investor for the acquisition (by the investor) of a majority shareholding in both Multiple Hauliers (EA) Limited and the Plaintiff, a transaction it says would retire the debts owed to both Defendants.
9. Both Respondents deny having blocked or restricted the Plaintiff's accounts or having taken any step, formal or otherwise, towards the appointment of a receiver, manager or administrator. They plead that any restriction on withdrawals and any prospective appointment would be a lawful exercise of the rights conferred by the respective debentures upon an undisputed and substantial default, and that the dispute between Multiple Hauliers (EA) Limited and its own financiers, to which neither Defendant is privy, is irrelevant to the Plaintiff's independent contractual obligations.
Issues for Determination
10. As this is an application for an interlocutory injunction, the issues for determination are confined to the three conditions set out in Giella v Cassman Brown and Co. Ltd (1973) EA 358, namely:
a) Whether the Plaintiff has established a prima facie case with a probability of success;
b) Whether the Plaintiff stands to suffer irreparable harm not compensable in damages; and
c) Where, if the Court remains in doubt, the balance of convenience lies.
Analysis and Determination
Whether the Plaintiff has established a prima facie case with a probability of success
11. It is trite law that a prima facie case is more than an arguable one; the evidence must show an infringement of a right and a probability of success at trial. The Court of Appeal defined what constitutes a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR). Following the House of Lords' approach in American Cyanamid Co v Ethicon Ltd [1975] AC 396, the Plaintiff must first cross the threshold of a triable case before the Court weighs questions of adequacy of damages and the balance of convenience.
12. Regarding the alleged blocking of the accounts, the Plaintiff tendered a screenshot dated December 2019 and January 2020, unaccompanied by the certificate required by section 106B of the Evidence Act for electronic evidence, a defect fatal to its probative value. In Mwaganda v Mbangha [2022] KEHC 17091 (KLR), the Court held that electronic evidence unaccompanied by a certificate required under the Evidence Act was inadmissible. The same strict approach to uncertified electronic records applies under comparable legislation elsewhere; the Supreme Court of India, construing the pari materia section 65B of the Indian Evidence Act, held that such a certificate is a mandatory condition precedent to admissibility in Anvar P.V. v P.K. Basheer (2014) 10 SCC 473.
13. The allegation is further undermined by the Plaintiff's own admission that cheques drawn in favour of Bongeni Energy Limited were honoured during the very period the accounts are said to have been blocked, an inconsistency amounting to approbating and reprobating. See I Spy Africa Ltd & another v Kanja & another (Suing as the Administrators to the Estate of the Late John Mbau Mbugua (Deceased) [2026] KEHC 720 (KLR). The doctrine is traced to the House of Lords' decision in Lissenden v C.A.V. Bosch Ltd [1940] AC 412.
14. Clause 11(e) of the 1st Defendant’s debenture vests in the 1st Defendant’s sole discretion the right to make payments from the Plaintiff's accounts. Courts will not rewrite a contract freely entered into by the parties absent proof of coercion, fraud or undue influence. See National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR). A lender's contractual control over payments from a chargor's account is, moreover, an orthodox and long-recognised incident of secured lending, as the House of Lords confirmed when examining equivalent account-control provisions in National Westminster Bank plc v Spectrum Plus Ltd [2005] UKHL 41. In the circumstances, I find and hold that no prima facie case is made out on this limb.
15. On the appointment of an administrator or receiver, the Plaintiff contends that none of the four debentures is a “qualifying floating charge” under section 534(2) of the Insolvency Act, 2015, each having been executed before the Act's commencement and none referencing it. This mirrors I & M Bank Limited v ABC Bank Limited & another [2021] KEHC 12977 (KLR), where a like debenture executed prior to the Insolvency Act, 2015 was held not to confer power to appoint an administrator without recourse to court. That defect, however, does not affect the power to appoint a receiver or manager, which section 734(2) of the Act expressly preserves for instruments such as the present debenture. See Athi River Steel Plant Ltd v Rao & 4 others [2024] KECA 585 (KLR).
16. Without a qualifying floating charge, a creditor's remedy when seeking to appoint an administrator is a formal application to the court under Part VIII of the Act. See I&M Bank Limited v Mitini Scapes Development Limited [2025] KEHC 5491 (KLR). To this end, the Plaintiff has made out a prima facie case only to the extent of restraining the appointment of an administrator otherwise than through the Court.
17. Finally, Multiple Hauliers (EA) Limited's dispute with its lenders, the related insolvency proceedings, the London arbitration and the prospective investor transaction do not assist the Plaintiff. Neither Defendant is a party to them, and a contract cannot impose obligations on a stranger to it. See Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another [2015] KECA 784 (KLR), which cites the House of Lords' statement of the privity doctrine in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847.
Whether the Plaintiff will suffer irreparable harm if an order of injunction is not issued
18. Where a prima facie case is not established, the question of whether irreparable harm will be suffered by the Plaintiff need not be considered. See Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) where the Court of Appeal held that, “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.” In any event, the harm pleaded is financial and readily quantifiable, and injunctive relief is not granted where damages would be an adequate remedy. See Benja Properties Limited & another v Standard Chartered Bank Kenya Limited & another [2023] KEHC 4027 (KLR). On the narrow limb on which the Plaintiff succeeds, no harm arises to either Defendant, since the order sought merely reinforces an existing statutory constraint rather than curtailing a substantive right.
Where does the balance of convenience lie?
19. Balance of convenience requires a comparison of the mischief likely to arise from withholding the injunction against that likely to arise from granting it. See Muriithi t/a Design Mate Enterprises v Family Bank Limited [2024] KEHC 15937 (KLR). The Plaintiff's substantially undisputed indebtedness exceeds US$55,000,000 to the 1st Defendant and US$32,000,000 to the 2nd Defendant, and continues to accrue. Restraining the Defendants from exercising their lawful remedies indefinitely would occasion escalating and uncompensated prejudice disproportionate to any inconvenience to the Plaintiff, which remains free to pursue its substantive claims. The balance of convenience therefore tilts in the Defendants' favour and against granting the orders sought, save for the one prohibiting appointment of administrators without leave of the Court.
Final Orders
20. For the foregoing reasons, the Notice of Motion dated 25th September 2025 succeeds only in part, in respect of Prayer 6, which is allowed. The remaining prayers are denied.
21. Costs are at the Court's discretion. Since the Plaintiff has been partly successful, I order that each party shall bear its own costs of the application.
22. It is so ordered.
Dated and signed at Nairobi this 18th day of September 2026.
1. By a Notice of Motion dated 25th September 2025, brought under Order 40 of the Civil Procedure Rules and Section 534 of the Insolvency Act, the Plaintiff sought the following prayers, as set out on the face of the application:
1)This application be certified as urgent and heard ex parte in the first instance;
2)This Honourable Court be pleased to issue an injunction directing the 1st Defendant to immediately unblock and lift restriction(s) on the Plaintiff's bank account numbers 1148042059 and 1113083441 pending the hearing and determination of this application;
3) This Honourable Court be pleased to issue a temporary injunction restraining the 1st Defendant, its employees, representatives and/or agents, from restricting or blocking the Plaintiff, in any way, from operating any of its bank account numbers 1148042059 and 1113083441 pending the hearing and determination of this application;
4)This Honourable Court be pleased to issue a temporary injunction restraining the 1st and 2nd Defendants, their employees, representatives and/or agents from appointing any administrator(s) or receiver(s) to manage the Plaintiff pending the hearing and determination of this application;
5) This Honourable Court be pleased to issue a temporary injunction restraining the 1st Defendant, its employees, representatives and/or agents, from restricting or blocking the Plaintiff, in any way, from operating any of its bank account numbers 1148042059 and 1113083441 pending the hearing and determination of the suit;
6) This Honourable Court be pleased to issue a temporary injunction restraining the 1st and 2nd Defendants, their employees, representatives and/or agents from appointing any administrator(s) or receiver(s) to manage the Plaintiff pending the hearing and determination of the suit; and
7)Costs of this application be borne by the Defendants.
2. The application is supported by the affidavit of Rajinder Singh Baryan, sworn on 25th September 2025, and by a Supplementary Affidavit of the same deponent, sworn on 19th January 2026.
3. The application is opposed by both Defendants. The 1st Defendant relies on the Replying Affidavit of Bonaventure Lumula, sworn on 10th December 2025, and the 2nd Defendant on the Replying Affidavit of Kenneth Murithi Gitonga, sworn on 11th December 2025. All three parties filed written submissions, lists, and bundles of authorities, with the Plaintiff's dated 22nd January 2026 and the 1st and 2nd Defendants' each dated 25th February 2026.
Factual Background
4. The Plaintiff is a container-handling and freight logistics company based in Mombasa. It maintains banking relationships and credit facilities with both Defendants and is the majority shareholder in Multiple Hauliers (EA) Limited, a logistics entity.
5. The 1st Defendant advanced credit facilities to the Plaintiff under Letters of Offer dated 2nd June 2009 and 26th July 2011, secured successively by debentures dated 11th December 2009, 10th February 2012 and 22nd June 2015. By a demand letter dated 5th September 2024, the 1st Defendant notified the Plaintiff of arrears of US$30,801,979.14. As at 19th November 2025, the 1st Defendant avers that the total sum outstanding stood at approximately US$55,342,015, exclusive of default interest and other charges.
6. The 2nd Defendant advanced a Term Loan of US$24,000,000 pursuant to a Letter of Offer dated 8th January 2013, secured by a debenture dated 5th March 2013. By a letter dated 28th August 2024, Co-op Bank notified the Plaintiff of arrears of US$13,127,226.77 against a total outstanding of US$32,101,597.47. As at 20th November 2025, the sum outstanding stood at approximately US$32,361,973.20.
7. Each of the four debentures confers upon the relevant Defendant, in the event of default, the right to (i) control and restrict payments from the Plaintiff's accounts, (ii) consolidate and set off accounts, and (iii) appoint a receiver or manager over the charged assets. None of the four debentures refers to Section 534 of the Insolvency Act, 2015, as each was executed before the Act's commencement, and none purports to authorize the appointment of an administrator under that Act.
8. The Plaintiff's case, in outline, is that on 18th September 2025 it discovered that the 1st Respondent had blocked its two accounts without notice or reason; that cheques drawn in favour of Bongeni Energy Limited were delayed for several days during the same period; and that the 2nd Respondent had earlier, on 15th May 2024, unlawfully debited US$483,791.89 from its account. The Plaintiff further avers that its financial difficulties stem not from an unwillingness to pay but from a dispute between Multiple Hauliers (EA) Limited and its own lenders, which is the subject of Nairobi Insolvency Cause No. E022 of 2021 and London-seated London Court of International Arbitration arbitral proceedings. The Plaintiff avers that it is in advanced discussions with an investor for the acquisition (by the investor) of a majority shareholding in both Multiple Hauliers (EA) Limited and the Plaintiff, a transaction it says would retire the debts owed to both Defendants.
9. Both Respondents deny having blocked or restricted the Plaintiff's accounts or having taken any step, formal or otherwise, towards the appointment of a receiver, manager or administrator. They plead that any restriction on withdrawals and any prospective appointment would be a lawful exercise of the rights conferred by the respective debentures upon an undisputed and substantial default, and that the dispute between Multiple Hauliers (EA) Limited and its own financiers, to which neither Defendant is privy, is irrelevant to the Plaintiff's independent contractual obligations.
Issues for Determination
10. As this is an application for an interlocutory injunction, the issues for determination are confined to the three conditions set out in Giella v Cassman Brown and Co. Ltd (1973) EA 358, namely:
a) Whether the Plaintiff has established a prima facie case with a probability of success;
b) Whether the Plaintiff stands to suffer irreparable harm not compensable in damages; and
c) Where, if the Court remains in doubt, the balance of convenience lies.
Analysis and Determination
Whether the Plaintiff has established a prima facie case with a probability of success
11. It is trite law that a prima facie case is more than an arguable one; the evidence must show an infringement of a right and a probability of success at trial. The Court of Appeal defined what constitutes a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR). Following the House of Lords' approach in American Cyanamid Co v Ethicon Ltd [1975] AC 396, the Plaintiff must first cross the threshold of a triable case before the Court weighs questions of adequacy of damages and the balance of convenience.
12. Regarding the alleged blocking of the accounts, the Plaintiff tendered a screenshot dated December 2019 and January 2020, unaccompanied by the certificate required by section 106B of the Evidence Act for electronic evidence, a defect fatal to its probative value. In Mwaganda v Mbangha [2022] KEHC 17091 (KLR), the Court held that electronic evidence unaccompanied by a certificate required under the Evidence Act was inadmissible. The same strict approach to uncertified electronic records applies under comparable legislation elsewhere; the Supreme Court of India, construing the pari materia section 65B of the Indian Evidence Act, held that such a certificate is a mandatory condition precedent to admissibility in Anvar P.V. v P.K. Basheer (2014) 10 SCC 473.
13. The allegation is further undermined by the Plaintiff's own admission that cheques drawn in favour of Bongeni Energy Limited were honoured during the very period the accounts are said to have been blocked, an inconsistency amounting to approbating and reprobating. See I Spy Africa Ltd & another v Kanja & another (Suing as the Administrators to the Estate of the Late John Mbau Mbugua (Deceased) [2026] KEHC 720 (KLR). The doctrine is traced to the House of Lords' decision in Lissenden v C.A.V. Bosch Ltd [1940] AC 412.
14. Clause 11(e) of the 1st Defendant’s debenture vests in the 1st Defendant’s sole discretion the right to make payments from the Plaintiff's accounts. Courts will not rewrite a contract freely entered into by the parties absent proof of coercion, fraud or undue influence. See National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR). A lender's contractual control over payments from a chargor's account is, moreover, an orthodox and long-recognised incident of secured lending, as the House of Lords confirmed when examining equivalent account-control provisions in National Westminster Bank plc v Spectrum Plus Ltd [2005] UKHL 41. In the circumstances, I find and hold that no prima facie case is made out on this limb.
15. On the appointment of an administrator or receiver, the Plaintiff contends that none of the four debentures is a “qualifying floating charge” under section 534(2) of the Insolvency Act, 2015, each having been executed before the Act's commencement and none referencing it. This mirrors I & M Bank Limited v ABC Bank Limited & another [2021] KEHC 12977 (KLR), where a like debenture executed prior to the Insolvency Act, 2015 was held not to confer power to appoint an administrator without recourse to court. That defect, however, does not affect the power to appoint a receiver or manager, which section 734(2) of the Act expressly preserves for instruments such as the present debenture. See Athi River Steel Plant Ltd v Rao & 4 others [2024] KECA 585 (KLR).
16. Without a qualifying floating charge, a creditor's remedy when seeking to appoint an administrator is a formal application to the court under Part VIII of the Act. See I&M Bank Limited v Mitini Scapes Development Limited [2025] KEHC 5491 (KLR). To this end, the Plaintiff has made out a prima facie case only to the extent of restraining the appointment of an administrator otherwise than through the Court.
17. Finally, Multiple Hauliers (EA) Limited's dispute with its lenders, the related insolvency proceedings, the London arbitration and the prospective investor transaction do not assist the Plaintiff. Neither Defendant is a party to them, and a contract cannot impose obligations on a stranger to it. See Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another [2015] KECA 784 (KLR), which cites the House of Lords' statement of the privity doctrine in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847.
Whether the Plaintiff will suffer irreparable harm if an order of injunction is not issued
18. Where a prima facie case is not established, the question of whether irreparable harm will be suffered by the Plaintiff need not be considered. See Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) where the Court of Appeal held that, “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.” In any event, the harm pleaded is financial and readily quantifiable, and injunctive relief is not granted where damages would be an adequate remedy. See Benja Properties Limited & another v Standard Chartered Bank Kenya Limited & another [2023] KEHC 4027 (KLR). On the narrow limb on which the Plaintiff succeeds, no harm arises to either Defendant, since the order sought merely reinforces an existing statutory constraint rather than curtailing a substantive right.
Where does the balance of convenience lie?
19. Balance of convenience requires a comparison of the mischief likely to arise from withholding the injunction against that likely to arise from granting it. See Muriithi t/a Design Mate Enterprises v Family Bank Limited [2024] KEHC 15937 (KLR). The Plaintiff's substantially undisputed indebtedness exceeds US$55,000,000 to the 1st Defendant and US$32,000,000 to the 2nd Defendant, and continues to accrue. Restraining the Defendants from exercising their lawful remedies indefinitely would occasion escalating and uncompensated prejudice disproportionate to any inconvenience to the Plaintiff, which remains free to pursue its substantive claims. The balance of convenience therefore tilts in the Defendants' favour and against granting the orders sought, save for the one prohibiting appointment of administrators without leave of the Court.
Final Orders
20. For the foregoing reasons, the Notice of Motion dated 25th September 2025 succeeds only in part, in respect of Prayer 6, which is allowed. The remaining prayers are denied.
21. Costs are at the Court's discretion. Since the Plaintiff has been partly successful, I order that each party shall bear its own costs of the application.
22. It is so ordered.
Dated and signed at Nairobi this 18th day of September 2026.