1. Before this court is a Notice of Motion Application dated 25th August 2026, filed by the Respondent/Applicant, seeking that: -
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d. Pending the inter partes hearing and determination of the Notice of Motion Dated 20th August 2026 filed in the Court of Appeal at Nairobi Civil Application No. E473 of 2026: EPCO Builders Limited versus KCB Bank Kenya Limited & Another and pending such further orders as the Court of Appeal may thereupon make, this Honourable court be pleased to issue a temporary injunction restraining the objector, whether by itself its directors, officers, servants, agents, the joint receivers and managers appointed on 24th February 2025 and/or any person acting on its instructions or authority and the Applicant from selling, transferring, alienating, removing, charging, parting with possession of, disposing of or otherwise dealing with the movable assets of the Applicant proclaimed and attached by Betabase Auctioneers on 20th February 2025 pursuant to the decree issued in favour of the Respondent/Applicant herein.
e. The costs of this Application be in the intended appeal.
f. This Honourable court be pleased to grant any such or further or other relief as it may deem just and expedient to grant.
2. The Applicant’s application is premised on the grounds set out on the face of the application and the supporting affidavit sworn on 25th August 2026 by Mayur Vasani, the Managing Director of the Applicant. He recounts that the Applicant and the Respondent entered into a construction agreement in April 2014, from which a dispute arose and was referred to arbitration. An arbitral award dated 11th September 2023 was subsequently made in favour of the Respondent.
3. The Respondent thereafter instituted proceedings for recognition and enforcement of the award, while the Applicant sought to set it aside. By a ruling delivered on 3rd February 2025, the Court dismissed the Applicant’s application and ordered recognition and enforcement of the arbitral award.
4. He states further that the Respondent subsequently extracted a decree on 14th February 2025 for Kshs. 158,207,544.06, pursuant to which it instructed Betabase Auctioneers to execute against the Applicant’s movable assets. The Auctioneers attended the Applicant’s premises, inventoried its machinery, equipment, furniture and other movable assets and on 20th February 2025 issued Proclamations of Attachment in respect thereof.
5. That on 24th February 2025, the Objector, KCB Bank Kenya Limited, appointed Joint Receivers and Managers over the Applicant and, on 25th February 2025, filed objection proceedings contending that its floating charge over the Applicant’s assets had crystallised before the proclamation of the assets which this court vide the ruling of 4th August 2026 allowed the objector’s application and dismissed its application dated 27th March 2025.
6. He avers that the effect of the ruling was to hold that the Objector’s floating charge had crystallised before completion of the execution process and that the Objector’s proprietary interest as a secured creditor took priority over the Applicant’s attachment and being aggrieved by the ruling, the Respondent/Applicant has lodged an appeal being Civil Application No. E473 of 2026, Epco Builders Limited v KCB Bank Kenya Limited & Another, seeking, inter alia, a temporary injunction restraining the Respondents from selling, transferring, removing, alienating, charging, parting with possession of, disposing of or otherwise dealing with the movable assets proclaimed and attached in execution of the decree.
7. He states that on 24th August 2026 the Court of Appeal certified their application urgent and issued directions on service. The Respondent/Applicant stated that there is an intervening period of several weeks before the Court of Appeal application can be heard and determined, during which period nothing restrains the Objector, the Joint Receivers and Managers, their agents or the Applicant from selling, transferring, removing or otherwise disposing of the proclaimed assets. The Applicant therefore apprehends that the assets may be dealt with before the Court of Appeal determines the intended appeal. That the proclaimed assets constitute the subject matter of both the intended appeal and the proceedings before the Court of Appeal, and that if the assets are sold or otherwise disposed of before the inter partes hearing, there would be nothing upon which the orders sought in the Court of Appeal could operate thereby rendering both the application and the intended appeal nugatory.
8. The Respondent/Applicant further relies on the valuation of the proclaimed assets at approximately Kshs. 1.6 billion, as against the Objector’s alleged indebtedness exceeding Kshs. 4.6 billion. It is consequently contended that there is no apparent equity or surplus from which the Applicant would be able to recover the decretal sum of Kshs. 158,207,544.06 if the proclaimed assets are realised and the proceeds applied towards the Objector’s secured debt. It avers further that the intended appeal is neither frivolous nor idle but raises weighty and arguable questions of law. In particular, the Applicant challenges this Court’s finding that its failure to comply with the Settlement Agreement by 31st January 2025 constituted a contractual event of default capable of crystallising the floating charge under the Supplemental Debenture. It is also contended that the Court erred in treating the termination or lapse of the Settlement Agreement as having the legal consequence of crystallising the floating charge. That it further challenges the finding that a contractual event of default had occurred before the proclamation of 20th February 2025. The Applicant also takes issue with this Court’s interpretation and application of Clause 15(d) of the Supplemental Debenture.
9. The Respondent/ Applicant contends that unless preservatory orders are granted, the proclaimed assets may be released from attachment and subsequently sold or otherwise disposed of, thereby occasioning substantial and irreparable loss and rendering the intended appeal nugatory. It is further argued that should the Court of Appeal ultimately allow the intended appeal, such success would be rendered nugatory because the specific assets over which the Applicant asserts priority would have been sold or otherwise dealt with and the proceeds applied towards the Objector’s secured indebtedness.
10. In opposition to the application, the Objector filed a Replying Affidavit sworn on 31st August 2026 by Oscar Obuna, the Head Special Assets and Corporate Recoveries of KCB Bank Kenya Limited. In response to the present application, the Objector states that the effect of the impugned ruling was that the Proclaimed Assets came under the control of the Joint Receivers and formed part of the assets that have since been sold for the benefit of Proctor & Allan (EA) limited creditors, including KCB as a secured creditor. It therefore contended that the orders sought by EPCO have been overtaken by events, as the proclaimed assets have already been sold. The Objector maintains that an injunction cannot operate retrospectively and that the court ought not to issue orders in vain.
11. The Objector further challenges the validity of EPCO’s intended appeal. He states that, although EPCO filed its Notice of Appeal is dated 18th August 2026, it was not filed until 19th August 2026, contrary, in his view to Rule 77(2) of the Court of Appeal Rules, 2022. KCB therefore contends that there is no valid Notice of Appeal and consequently, no valid appeal before the Court of Appeal capable of being rendered nugatory.
12. It also takes issue with the fact that EPCO has filed an application dated 20th August 2026 before the Court of Appeal, seeking substantially similar relief to that sought in the present application. He states that the Court of Appeal is already seized of that application and has issued directions thereon. KCB therefore characterises the filing of the present application as forum shopping and an abuse of the court process, on the basis that EPCO has instituted parallel proceedings concerning the same subject matter before two different courts.
13. Without prejudice to the foregoing, the objector states that the application does not satisfy the requirements for the grant of a stay or injunctive relief under Order 42 Rule 6 of the Civil Procedure Rules, principally because there is no valid Notice of Appeal upon which the intended appeal can be anchored.
14. The objector characterises the application as an attempt to interfere with the receivership process and argues that EPCO has not demonstrated that the Joint Receivers have acted in a manner that is oppressive or contrary to recognised principles of law. It is further contended that the orders sought would improperly elevate the the interests of EPCO, which it characterises as an unsecured creditor, ahead of those of Proctor & Allan (EA) Limited’s other creditors including KCB as a secured creditor.
15. The objector further contends that allowing the application would create an undesirable precedent whereby securities granted to secure bank facilities could become worthless and the established hierarchy of creditors in insolvency proceedings could be disregarded, thereby discouraging banks from issuing facilities.
16. The Objector also filed a supplementary affidavit sworn on 1st September 2026 stating that the movable and immovable assets of Proctor & Allan (EA) Limited have since been sold by the Joint Receivers, and Managers of Proctor & Allan (EA) Limited. He further states that the by virtue of KCB’s status as a debenture holder, the bank was aware of and required to approve the sale of those assets.
17. The Respondent/Applicant filed a further affidavit sworn on 5th September 2026 stating that the Objector’s Replying Affidavit and Supplementary Affidavit disclose that the Joint Receivers have already sold part of Proctor & Allan (EA) Limited’s movable assets, notwithstanding that the dispute concerning EPCO’s execution against the same assets remained pending before this Honourable Court. He states that the Objector’s own evidence demonstrates the need to preserve the remaining proclaimed assets pending determination of the proceedings before the Court of Appeal.
18. The Respondent/Applicant states that the Asset Sale Agreement dated 9th June 2026 with Assistiva Foods Limited for sale of substantial plant and machinery situated at Proctor & Allan’s Limure premises was entered into before delivery of this Court’s ruling on 4th August 2026, and while KCB’s objection to EPCO’s execution was still pending and undetermined. He therefore contends that KCB was effectively asking the Court to determine the competing rights over the assets while simultaneously approving a transaction for their disposal.
19. On jurisdiction, the Respondent/Applicant contends that the present application does not seek to vary or overturn the Court’s ruling but seeks interim preservatory orders pending the hearing and determination of the Applicant’s application before the Court of Appeal.
20. The Respondent/Applicant states that KCB does not dispute the material chronology underlying the application. He reiterates that EPCO obtained an arbitral award against Proctor & Allan, which was adopted as a judgment of this Court on 14th February 2025, following which EPCO commenced execution proceedings and caused specifically identified movable assets to be proclaimed and attached on 20th February 2025. KCB’s Joint Receivers were thereafter appointed on 24th February 2025. He therefore maintains that the attachment preceded the appointment of the Joint Receivers by four days. He contends that the central issue before the Court of Appeal is precisely the legal effect of that attachment and the subsequent intervention of KCB.
21. He argues that KCB’s assertion that the floating charge automatically crystallised upon commencement of EPCO’s execution is the very issue challenged in the intended appeal and cannot properly be treated as an incontrovertible fact merely because KCB has so asserted. He maintains that EPCO’s proclamation and attachment on 20th February 2025 could not, on a proper construction of Clause 15(d) of the Supplemental Debenture, trigger immediate crystallisation. He contends that this is a substantial and arguable issue for determination by the Court of Appeal.
22. The Respondent/Applicant further states that unless the proclaimed assets are preserved, there is a real risk that they will be disposed of before the Court of Appeal has an opportunity to determine the competing rights, thereby rendering the appellate proceedings nugatory and depriving EPCO of the benefit of any relief that may ultimately be granted.
23. He further contends that KCB’s own evidence concerning its conduct is material to the question of whether and when the floating charge crystallised and the legal consequences thereof vis-à-vis EPCO’s execution process. In particular, the correspondence exhibited by KCB demonstrates that negotiations concerning the proposed acquisition of Proctor & Allan and/or investment in it by Equatorial Nut Processors Limited continued through January and February 2025, immediately before EPCO’s attachment and the appointment of the Joint Receivers.
24. The Respondent/Applicant further points out that the exhibited correspondence includes discussions concerning a proposed investment of USD 10 million and requests for additional time to facilitate completion of the proposed transaction. He argues that this evidence demonstrates that Proctor & Allan remained in possession and operational control of its business and assets until the Joint Receivers were appointed on 24th February 2025, a fact which is relevant to the question of crystallisation.
25. The Respondent/Applicant maintains that EPCO was not merely an unsecured creditor awaiting payment when KCB appointed the Joint Receivers. Rather, EPCO was a decree-holder which had invoked the jurisdiction of this Court, obtained warrants of attachment and caused specifically identified movable assets to be proclaimed and attached pursuant to a valid and subsisting decree. The proclamation occurred on 20th February 2025, four days before the appointment of the Joint Receivers. He therefore contends that the intended appeal raises substantial questions concerning the legal consequences of the attachment, including whether KCB could subsequently intervene and assert priority over assets that had already been attached in execution before the appointment of the Joint Receivers. He maintains that those questions should ultimately be determined by the Court of Appeal, while the present Court is only being asked to preserve the subject matter.
26. The Respondent/Applicant further challenges the legal effect of the Asset Sale Agreement disclosed by KCB. He states that KCB’s Supplementary Affidavit confirms that the Joint Receivers sold part of Proctor & Allan’s assets to Assistiva Foods Limited under the Asset Sale Agreement dated 9th June 2026, for KES 380,430,000.00, comprising plant and machinery. He contends that the sale was undertaken while the dispute concerning EPCO’s execution remained pending and before delivery of this Court’s ruling.
27. He argues that the Asset Sale Agreement is significant because it demonstrates that KCB had approved the sale of assets which were the subject of the pending proceedings, notwithstanding its status as the Objector asserting a competing proprietary interest. He contends that KCB’s consent to the sale in its capacity as debenture holder or chargee did not determine the disputed question of priority between KCB and EPCO nor did it constitute a determination of KCB’s entitlement to deal with the assets while the dispute remained pending before the Court.
28. The Respondent/Applicant consequently argues that KCB’s newly disclosed evidence raises a prima facie issue of interference with property that was subject to ongoing proceedings. He further contends that KCB’s own admission that it approved the sale of assets affected by EPCO’s execution, while it’s objection proceedings remained pending and undetermined, raises serious concern regarding interference with the execution process, the principle of custodia legis and the due administration of justice. He emphasises that KCB was not an uninvolved third party but was itself the Objector which had invoked the Court’s jurisdiction to challenge EPCO’s execution.
29. The Respondent/Applicant states that EPCO does not, through the present application, ask this Court to determine criminal or contempt liability. Rather, it relies upon the newly disclosed evidence for the immediate purpose of preserving the subject matter and expressly reserves the right to institute appropriate contempt proceedings upon identification of the persons responsible and further investigation. He similarly reserves EPCO’s right to make appropriate complaints should the evidence establish the requisite factual and legal basis.
30. He disputes KCB’s contention that EPCO’s apprehension of loss is merely hypothetical. He states that KCB’s own evidence establishes that the Joint Receivers have already sold part of the proclaimed assets notwithstanding that the dispute remained pending. The dissipation of the assets and application of the sale proceeds are therefore said to have already commenced, making the risk to the remaining assets actual and imminent rather than speculative.
31. The Respondent/Applicant contends that KCB’s admission strengthens, rather than defeats, the case for immediate preservation. Unless the remaining proclaimed assets are preserved, there is a real and demonstrated risk that they too will be sold, transferred, alienated or otherwise dissipated towards an outstanding balance claimed by KCB, thereby presenting the Court of Appeal with an irreversible fait accompli and potentially rendering EPCO’s appeal practically ineffectual. The Respondent/Applicant accordingly urges the Court to allow the application dated 25th August 2026.
32. The present application was canvassed by written submissions. The Respondent’s/Applicant’s submissions is dated 3rd September 2026 while the Objector’s submissions is dated 4th September 2026.
Respondent’s/Applicant’s submissions
33. The Respondent/Applicant identified three issues for determination that is whether the court has jurisdiction to grant the preservatory relief sought, whether EPCO has satisfied the threshold for the grant of such preservatory relief and whether the purported sale of the proclaimed assets while the dispute remained pending before the court ought to be sustained or given effect to by a court of law
34. On the first issue, the Respondent/Applicant submits that the mere pendency of an application before the Court of Appeal does not oust the High Court’s jurisdiction to grant limited interim relief necessary to preserve the subject matter of an intended appeal. Reliance is placed principally on Madhupaper International Ltd v Kerr [1985] KLR 840, where the Court of Appeal recognised the concurrent jurisdiction of the High Court and the Court of Appeal to grant an injunction pending appeal, and held that the High Court should exercise that jurisdiction where appropriate to ensure that a successful appeal is not rendered nugatory. The same principle, it is submitted, was applied in Rentco Africa Limited (Formerly Rentco East Africa Limited) v Urysia Limited (Commercial Case E931 of 2021) [2023] KEHC 2305 (KLR). The Applicant therefore maintains that it is not inviting this Court to revisit its ruling of 4th August 2026 or exercise appellate jurisdiction over its own decision, but merely to preserve the subject matter for the short period necessary to enable the Court of Appeal to hear the pending Rule 5(2)(b) application.
35. On the validity of the Notice of Appeal, the Applicant submits that the Notice lodged on 19th August 2026 was filed within the prescribed fourteen days. It relies on Order 42 Rule 6(4) of the Civil Procedure Rules and section 57(a) of the Interpretation and General Provisions Act, contending that the date of delivery of the impugned ruling is excluded from computation of time. The 14 day period therefore commenced on 5th August 2026 and expired on 19th August 2026. The Applicant relies on Garamu v Karisa & 3 Others (Election Petition Appeal (Application) 1 of 2023) [2023] KECA 924 (KLR), where the Court of Appeal affirmed that the day on which a judgment is delivered is excluded when computing the prescribed period.
36. As to the threshold for preservatory relief, the Applicant submits that the intended appeal is arguable and raises serious questions for determination by the Court of Appeal, without asking this Court to determine those questions on their merits. The principal issues include whether commencement of EPCO’s execution automatically crystallised KCB’s floating charge or whether, under Clause 15(d) of the Supplemental Debenture, crystallisation on the ground of execution was subject to the stipulated 14-day period; and whether KCB’s subsequent assertion of crystallisation could defeat EPCO’s pre-existing execution rights over assets already specifically identified and attached. The Applicant relies on I & M Bank Kenya Limited & Another v Synergy Industrial Credit Limited & 2 Others (Civil Appeals Nos. E758 & E788 of 2021 (Consolidated)) [2024] KECA 855 (KLR). It is argued that these are not frivolous questions and should be left for determination by the Court of Appeal.
37. The Applicant further submits that the nugatory limb is particularly compelling because the proclaimed assets constitute the substratum of the intended appeal. While relying on National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer, Civil Appeal No. 195 of 2004 [2005] KECA 1 (KLR) and Isaac Miano Ngethe v Principal Administrative Secretary & Another, Miscellaneous Application No. E689 of 2022 [2024] KEHC 6633 (KLR), it argues that once goods are lawfully proclaimed and attached pursuant to the Rules of the Court, they come into custodia legis and the attachment remains subsisting until lawfully brought to an end. The Applicant contends that, in the present case, the attachment remained subsisting while its challenge to KCB’s asserted priority was pending before this Court and that no order of the Court authorised the Joint Receivers to dispose of the proclaimed assets. KCB’s subsequent disclosure that the Joint Receivers proceeded to sell part of the assets therefore demonstrates that the apprehended dissipation is real rather than speculative.
38. The Applicant places particular emphasis on the Asset Sale Agreement dated 8th June 2026 between the Joint Receivers and Assistiva Foods Limited for the sale of Proctor & Allan’s plant and machinery for Kshs 380,430,000 which was executed more than two months before this Court delivered its ruling of 4th August 2026 and while KCB’s asserted priority over the proclaimed assets remained the subject of pending proceedings.
39. It submits that, at the time of the sale, the assets were still under a subsisting attachment and in custodia legis, and that the Joint Receivers proceeded with the transaction without first obtaining an order of this Court authorising or sanctioning disposal. The Applicant therefore argues that KCB cannot rely on its consent to the transaction, whether as existing lender or purchaser, to confer legitimacy upon a sale undertaken while the ownership and priority rights in the assets were still sub judice. In this regard, the Applicant relies on Wambui v Mwangi & 3 Others (Civil Appeal 465 of 2019) [2021] KECA 144 (KLR) for the proposition that a court ought not to enforce or give effect to an illegal transaction once its illegality is brought to its attention. It submits that the court should not permit KCB and the Joint Receivers to rely upon completion of the sale as a means of defeating the pending proceedings or converting a disputed transaction into an accomplished fact. The Applicant consequently urges the court to disregard the purported sale for purposes of the present application and preserve both the remaining proclaimed assets and the proceeds of the sale pending the Court of Appeal’s consideration of the Rule 5(2)(b) application.
40. On the receivership and EPCO’s pre-existing execution rights, the Applicant submits that the appointment of the Joint Receivers did not, without more, extinguish or displace EPCO’s rights arising from the attachment effected on 20th February 2025. While relying on Surya Holdings Limited & 2 Others v CFC Stanbic Bank Limited [2015] KEHC 2209 (KLR) and In re Arvind Engineering Limited [2019] KEHC 12266 (KLR), it submits that a receiver and manager appointed under a debenture acts as an agent of the company and must exercise the powers conferred by the debenture and the law, while remaining accountable for the company’s property and affairs. It also relies on I&M Bank Limited v Mitini Scapes Development Limited (Insolvency Cause E107 of 2024) [2025] KEHC 5491 (KLR) to distinguish receivership from statutory administration. On that basis, the Applicant argues that the appointment of the Joint Receivers did not automatically constitute a statutory moratorium or confer upon them an unfettered right to disregard EPCO’s pre-existing proclamation and attachment; rather, the legal effect and priority of KCB’s security vis-à-vis EPCO’s execution are precisely the matters reserved for determination by the Court of Appeal.
41. The Applicant submits that the balance of convenience and interests of justice overwhelmingly favour preservation. The Applicant therefore urges the court to preserve the remaining proclaimed assets and the proceeds of the purported sale and in particular, to disregard the sale as incapable of conferring lawful title or interest pending determination of the competing claims by the appellate court.
Objector’s submissions
42. The Objector opposes EPCO Builders Limited’s Notice of Motion dated 25th August 2026. The Objector identifies three issues for determination: whether the application constitutes an abuse of the Court process; whether the requirements for an injunction under Order 42 Rule 6 of the Civil Procedure Rules have been met; and whether the circumstances justify interference with the functions of the Joint Receivers.
43. On abuse of the Court process and hierarchy of courts, the Objector submits that EPCO has simultaneously approached this Court under Order 42 Rule 6 and the Court of Appeal under Rule 5(2)(b), seeking substantially the same relief in respect of the same Proclaimed Assets. It argues that although both courts possess jurisdiction to grant interim relief pending appeal, that jurisdiction cannot properly be exercised concurrently once the Court of Appeal has seized the matter and issued directions. Reliance is placed on African Banking Corporation Limited v Intex Construction Limited & another [2021] KEHC 7594 (KLR), where the Court emphasised respect for the hierarchy of courts. The Objector further relies on Bia Tosha Distributors Limited & Another v East Africa Breweries Limited & Others, Milimani High Court Petition No. 249 of 2016 (unreported). The Objector therefore contends that EPCO’s election to proceed before the Court of Appeal was definitive and that its return to the High Court amounts to forum shopping and an abuse of process. It further relies on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] KECA 453 (KLR) and Republic v Kariuki & 3 Others; Law Society of Kenya (Ex parte Applicant) [2020] KEHC 10142 (KLR) on abuse of the court process.
44. On the requirements for an injunction under Order 42 Rule 6, the Objector submits that the jurisdiction under Order 42 Rule 6(6) is available only where the High Court is exercising its appellate jurisdiction. It relies on Matheta (Suing as the Legal Representative of the Estate of the Late Janet Ciomithea Matheta) v M’Mwenda [2026] KEELC 5003 (KLR), which identified the applicable principles as including that the intended appeal must not be frivolous, refusal of the injunction must threaten to render the appeal nugatory, and the grant of the injunction must not occasion greater hardship.
45. The Objector argues that the present proceedings are not appellate proceedings. EPCO’s original proceedings concerned an application to set aside an arbitral award under section 35 of the Arbitration Act, followed by an application for recognition and enforcement of the award. The resulting ruling recognising the award was therefore not a judgment from a subordinate court or tribunal against which an appeal lies to the High Court. In support, the Objector relies on Gachuhi & another v Evangelical Mission for Africa & another; Law Society of Kenya (Interested Party) [2023] KECA 51 (KLR). The Objector also relies on Associated Motors Limited v Sekura International Limited [2023] KEHC 3125 (KLR), as well as Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd & Another [2019] eKLR, Synergy Industrial Credit Ltd v Cape Holdings Ltd [2019] eKLR, Equity Bank Limited v Adopt a Light Limited, ML HC Misc. Application No. 435 of 2013 [2014] eKLR, and Kenya Oil Company Limited & Another v Kenya Pipeline Company Limited, NRB CA Civil Appeal No. 102 of 2012 [2014] eKLR, for the proposition that a court dealing with an application to set aside an arbitral award is not sitting as an appellate court. Consequently, the Objector contends that Order 42 Rule 6(6) is inapplicable.
46. The Objector further argues that there is no valid Notice of Appeal upon which an intended appeal can be founded. EPCO’s Notice of Appeal is dated 18th August 2026 but was lodged on 19th August 2026, which the Objector says was outside the 14 day period presc
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d. Pending the inter partes hearing and determination of the Notice of Motion Dated 20th August 2026 filed in the Court of Appeal at Nairobi Civil Application No. E473 of 2026: EPCO Builders Limited versus KCB Bank Kenya Limited & Another and pending such further orders as the Court of Appeal may thereupon make, this Honourable court be pleased to issue a temporary injunction restraining the objector, whether by itself its directors, officers, servants, agents, the joint receivers and managers appointed on 24th February 2025 and/or any person acting on its instructions or authority and the Applicant from selling, transferring, alienating, removing, charging, parting with possession of, disposing of or otherwise dealing with the movable assets of the Applicant proclaimed and attached by Betabase Auctioneers on 20th February 2025 pursuant to the decree issued in favour of the Respondent/Applicant herein.
e. The costs of this Application be in the intended appeal.
f. This Honourable court be pleased to grant any such or further or other relief as it may deem just and expedient to grant.
2. The Applicant’s application is premised on the grounds set out on the face of the application and the supporting affidavit sworn on 25th August 2026 by Mayur Vasani, the Managing Director of the Applicant. He recounts that the Applicant and the Respondent entered into a construction agreement in April 2014, from which a dispute arose and was referred to arbitration. An arbitral award dated 11th September 2023 was subsequently made in favour of the Respondent.
3. The Respondent thereafter instituted proceedings for recognition and enforcement of the award, while the Applicant sought to set it aside. By a ruling delivered on 3rd February 2025, the Court dismissed the Applicant’s application and ordered recognition and enforcement of the arbitral award.
4. He states further that the Respondent subsequently extracted a decree on 14th February 2025 for Kshs. 158,207,544.06, pursuant to which it instructed Betabase Auctioneers to execute against the Applicant’s movable assets. The Auctioneers attended the Applicant’s premises, inventoried its machinery, equipment, furniture and other movable assets and on 20th February 2025 issued Proclamations of Attachment in respect thereof.
5. That on 24th February 2025, the Objector, KCB Bank Kenya Limited, appointed Joint Receivers and Managers over the Applicant and, on 25th February 2025, filed objection proceedings contending that its floating charge over the Applicant’s assets had crystallised before the proclamation of the assets which this court vide the ruling of 4th August 2026 allowed the objector’s application and dismissed its application dated 27th March 2025.
6. He avers that the effect of the ruling was to hold that the Objector’s floating charge had crystallised before completion of the execution process and that the Objector’s proprietary interest as a secured creditor took priority over the Applicant’s attachment and being aggrieved by the ruling, the Respondent/Applicant has lodged an appeal being Civil Application No. E473 of 2026, Epco Builders Limited v KCB Bank Kenya Limited & Another, seeking, inter alia, a temporary injunction restraining the Respondents from selling, transferring, removing, alienating, charging, parting with possession of, disposing of or otherwise dealing with the movable assets proclaimed and attached in execution of the decree.
7. He states that on 24th August 2026 the Court of Appeal certified their application urgent and issued directions on service. The Respondent/Applicant stated that there is an intervening period of several weeks before the Court of Appeal application can be heard and determined, during which period nothing restrains the Objector, the Joint Receivers and Managers, their agents or the Applicant from selling, transferring, removing or otherwise disposing of the proclaimed assets. The Applicant therefore apprehends that the assets may be dealt with before the Court of Appeal determines the intended appeal. That the proclaimed assets constitute the subject matter of both the intended appeal and the proceedings before the Court of Appeal, and that if the assets are sold or otherwise disposed of before the inter partes hearing, there would be nothing upon which the orders sought in the Court of Appeal could operate thereby rendering both the application and the intended appeal nugatory.
8. The Respondent/Applicant further relies on the valuation of the proclaimed assets at approximately Kshs. 1.6 billion, as against the Objector’s alleged indebtedness exceeding Kshs. 4.6 billion. It is consequently contended that there is no apparent equity or surplus from which the Applicant would be able to recover the decretal sum of Kshs. 158,207,544.06 if the proclaimed assets are realised and the proceeds applied towards the Objector’s secured debt. It avers further that the intended appeal is neither frivolous nor idle but raises weighty and arguable questions of law. In particular, the Applicant challenges this Court’s finding that its failure to comply with the Settlement Agreement by 31st January 2025 constituted a contractual event of default capable of crystallising the floating charge under the Supplemental Debenture. It is also contended that the Court erred in treating the termination or lapse of the Settlement Agreement as having the legal consequence of crystallising the floating charge. That it further challenges the finding that a contractual event of default had occurred before the proclamation of 20th February 2025. The Applicant also takes issue with this Court’s interpretation and application of Clause 15(d) of the Supplemental Debenture.
9. The Respondent/ Applicant contends that unless preservatory orders are granted, the proclaimed assets may be released from attachment and subsequently sold or otherwise disposed of, thereby occasioning substantial and irreparable loss and rendering the intended appeal nugatory. It is further argued that should the Court of Appeal ultimately allow the intended appeal, such success would be rendered nugatory because the specific assets over which the Applicant asserts priority would have been sold or otherwise dealt with and the proceeds applied towards the Objector’s secured indebtedness.
10. In opposition to the application, the Objector filed a Replying Affidavit sworn on 31st August 2026 by Oscar Obuna, the Head Special Assets and Corporate Recoveries of KCB Bank Kenya Limited. In response to the present application, the Objector states that the effect of the impugned ruling was that the Proclaimed Assets came under the control of the Joint Receivers and formed part of the assets that have since been sold for the benefit of Proctor & Allan (EA) limited creditors, including KCB as a secured creditor. It therefore contended that the orders sought by EPCO have been overtaken by events, as the proclaimed assets have already been sold. The Objector maintains that an injunction cannot operate retrospectively and that the court ought not to issue orders in vain.
11. The Objector further challenges the validity of EPCO’s intended appeal. He states that, although EPCO filed its Notice of Appeal is dated 18th August 2026, it was not filed until 19th August 2026, contrary, in his view to Rule 77(2) of the Court of Appeal Rules, 2022. KCB therefore contends that there is no valid Notice of Appeal and consequently, no valid appeal before the Court of Appeal capable of being rendered nugatory.
12. It also takes issue with the fact that EPCO has filed an application dated 20th August 2026 before the Court of Appeal, seeking substantially similar relief to that sought in the present application. He states that the Court of Appeal is already seized of that application and has issued directions thereon. KCB therefore characterises the filing of the present application as forum shopping and an abuse of the court process, on the basis that EPCO has instituted parallel proceedings concerning the same subject matter before two different courts.
13. Without prejudice to the foregoing, the objector states that the application does not satisfy the requirements for the grant of a stay or injunctive relief under Order 42 Rule 6 of the Civil Procedure Rules, principally because there is no valid Notice of Appeal upon which the intended appeal can be anchored.
14. The objector characterises the application as an attempt to interfere with the receivership process and argues that EPCO has not demonstrated that the Joint Receivers have acted in a manner that is oppressive or contrary to recognised principles of law. It is further contended that the orders sought would improperly elevate the the interests of EPCO, which it characterises as an unsecured creditor, ahead of those of Proctor & Allan (EA) Limited’s other creditors including KCB as a secured creditor.
15. The objector further contends that allowing the application would create an undesirable precedent whereby securities granted to secure bank facilities could become worthless and the established hierarchy of creditors in insolvency proceedings could be disregarded, thereby discouraging banks from issuing facilities.
16. The Objector also filed a supplementary affidavit sworn on 1st September 2026 stating that the movable and immovable assets of Proctor & Allan (EA) Limited have since been sold by the Joint Receivers, and Managers of Proctor & Allan (EA) Limited. He further states that the by virtue of KCB’s status as a debenture holder, the bank was aware of and required to approve the sale of those assets.
17. The Respondent/Applicant filed a further affidavit sworn on 5th September 2026 stating that the Objector’s Replying Affidavit and Supplementary Affidavit disclose that the Joint Receivers have already sold part of Proctor & Allan (EA) Limited’s movable assets, notwithstanding that the dispute concerning EPCO’s execution against the same assets remained pending before this Honourable Court. He states that the Objector’s own evidence demonstrates the need to preserve the remaining proclaimed assets pending determination of the proceedings before the Court of Appeal.
18. The Respondent/Applicant states that the Asset Sale Agreement dated 9th June 2026 with Assistiva Foods Limited for sale of substantial plant and machinery situated at Proctor & Allan’s Limure premises was entered into before delivery of this Court’s ruling on 4th August 2026, and while KCB’s objection to EPCO’s execution was still pending and undetermined. He therefore contends that KCB was effectively asking the Court to determine the competing rights over the assets while simultaneously approving a transaction for their disposal.
19. On jurisdiction, the Respondent/Applicant contends that the present application does not seek to vary or overturn the Court’s ruling but seeks interim preservatory orders pending the hearing and determination of the Applicant’s application before the Court of Appeal.
20. The Respondent/Applicant states that KCB does not dispute the material chronology underlying the application. He reiterates that EPCO obtained an arbitral award against Proctor & Allan, which was adopted as a judgment of this Court on 14th February 2025, following which EPCO commenced execution proceedings and caused specifically identified movable assets to be proclaimed and attached on 20th February 2025. KCB’s Joint Receivers were thereafter appointed on 24th February 2025. He therefore maintains that the attachment preceded the appointment of the Joint Receivers by four days. He contends that the central issue before the Court of Appeal is precisely the legal effect of that attachment and the subsequent intervention of KCB.
21. He argues that KCB’s assertion that the floating charge automatically crystallised upon commencement of EPCO’s execution is the very issue challenged in the intended appeal and cannot properly be treated as an incontrovertible fact merely because KCB has so asserted. He maintains that EPCO’s proclamation and attachment on 20th February 2025 could not, on a proper construction of Clause 15(d) of the Supplemental Debenture, trigger immediate crystallisation. He contends that this is a substantial and arguable issue for determination by the Court of Appeal.
22. The Respondent/Applicant further states that unless the proclaimed assets are preserved, there is a real risk that they will be disposed of before the Court of Appeal has an opportunity to determine the competing rights, thereby rendering the appellate proceedings nugatory and depriving EPCO of the benefit of any relief that may ultimately be granted.
23. He further contends that KCB’s own evidence concerning its conduct is material to the question of whether and when the floating charge crystallised and the legal consequences thereof vis-à-vis EPCO’s execution process. In particular, the correspondence exhibited by KCB demonstrates that negotiations concerning the proposed acquisition of Proctor & Allan and/or investment in it by Equatorial Nut Processors Limited continued through January and February 2025, immediately before EPCO’s attachment and the appointment of the Joint Receivers.
24. The Respondent/Applicant further points out that the exhibited correspondence includes discussions concerning a proposed investment of USD 10 million and requests for additional time to facilitate completion of the proposed transaction. He argues that this evidence demonstrates that Proctor & Allan remained in possession and operational control of its business and assets until the Joint Receivers were appointed on 24th February 2025, a fact which is relevant to the question of crystallisation.
25. The Respondent/Applicant maintains that EPCO was not merely an unsecured creditor awaiting payment when KCB appointed the Joint Receivers. Rather, EPCO was a decree-holder which had invoked the jurisdiction of this Court, obtained warrants of attachment and caused specifically identified movable assets to be proclaimed and attached pursuant to a valid and subsisting decree. The proclamation occurred on 20th February 2025, four days before the appointment of the Joint Receivers. He therefore contends that the intended appeal raises substantial questions concerning the legal consequences of the attachment, including whether KCB could subsequently intervene and assert priority over assets that had already been attached in execution before the appointment of the Joint Receivers. He maintains that those questions should ultimately be determined by the Court of Appeal, while the present Court is only being asked to preserve the subject matter.
26. The Respondent/Applicant further challenges the legal effect of the Asset Sale Agreement disclosed by KCB. He states that KCB’s Supplementary Affidavit confirms that the Joint Receivers sold part of Proctor & Allan’s assets to Assistiva Foods Limited under the Asset Sale Agreement dated 9th June 2026, for KES 380,430,000.00, comprising plant and machinery. He contends that the sale was undertaken while the dispute concerning EPCO’s execution remained pending and before delivery of this Court’s ruling.
27. He argues that the Asset Sale Agreement is significant because it demonstrates that KCB had approved the sale of assets which were the subject of the pending proceedings, notwithstanding its status as the Objector asserting a competing proprietary interest. He contends that KCB’s consent to the sale in its capacity as debenture holder or chargee did not determine the disputed question of priority between KCB and EPCO nor did it constitute a determination of KCB’s entitlement to deal with the assets while the dispute remained pending before the Court.
28. The Respondent/Applicant consequently argues that KCB’s newly disclosed evidence raises a prima facie issue of interference with property that was subject to ongoing proceedings. He further contends that KCB’s own admission that it approved the sale of assets affected by EPCO’s execution, while it’s objection proceedings remained pending and undetermined, raises serious concern regarding interference with the execution process, the principle of custodia legis and the due administration of justice. He emphasises that KCB was not an uninvolved third party but was itself the Objector which had invoked the Court’s jurisdiction to challenge EPCO’s execution.
29. The Respondent/Applicant states that EPCO does not, through the present application, ask this Court to determine criminal or contempt liability. Rather, it relies upon the newly disclosed evidence for the immediate purpose of preserving the subject matter and expressly reserves the right to institute appropriate contempt proceedings upon identification of the persons responsible and further investigation. He similarly reserves EPCO’s right to make appropriate complaints should the evidence establish the requisite factual and legal basis.
30. He disputes KCB’s contention that EPCO’s apprehension of loss is merely hypothetical. He states that KCB’s own evidence establishes that the Joint Receivers have already sold part of the proclaimed assets notwithstanding that the dispute remained pending. The dissipation of the assets and application of the sale proceeds are therefore said to have already commenced, making the risk to the remaining assets actual and imminent rather than speculative.
31. The Respondent/Applicant contends that KCB’s admission strengthens, rather than defeats, the case for immediate preservation. Unless the remaining proclaimed assets are preserved, there is a real and demonstrated risk that they too will be sold, transferred, alienated or otherwise dissipated towards an outstanding balance claimed by KCB, thereby presenting the Court of Appeal with an irreversible fait accompli and potentially rendering EPCO’s appeal practically ineffectual. The Respondent/Applicant accordingly urges the Court to allow the application dated 25th August 2026.
32. The present application was canvassed by written submissions. The Respondent’s/Applicant’s submissions is dated 3rd September 2026 while the Objector’s submissions is dated 4th September 2026.
Respondent’s/Applicant’s submissions
33. The Respondent/Applicant identified three issues for determination that is whether the court has jurisdiction to grant the preservatory relief sought, whether EPCO has satisfied the threshold for the grant of such preservatory relief and whether the purported sale of the proclaimed assets while the dispute remained pending before the court ought to be sustained or given effect to by a court of law
34. On the first issue, the Respondent/Applicant submits that the mere pendency of an application before the Court of Appeal does not oust the High Court’s jurisdiction to grant limited interim relief necessary to preserve the subject matter of an intended appeal. Reliance is placed principally on Madhupaper International Ltd v Kerr [1985] KLR 840, where the Court of Appeal recognised the concurrent jurisdiction of the High Court and the Court of Appeal to grant an injunction pending appeal, and held that the High Court should exercise that jurisdiction where appropriate to ensure that a successful appeal is not rendered nugatory. The same principle, it is submitted, was applied in Rentco Africa Limited (Formerly Rentco East Africa Limited) v Urysia Limited (Commercial Case E931 of 2021) [2023] KEHC 2305 (KLR). The Applicant therefore maintains that it is not inviting this Court to revisit its ruling of 4th August 2026 or exercise appellate jurisdiction over its own decision, but merely to preserve the subject matter for the short period necessary to enable the Court of Appeal to hear the pending Rule 5(2)(b) application.
35. On the validity of the Notice of Appeal, the Applicant submits that the Notice lodged on 19th August 2026 was filed within the prescribed fourteen days. It relies on Order 42 Rule 6(4) of the Civil Procedure Rules and section 57(a) of the Interpretation and General Provisions Act, contending that the date of delivery of the impugned ruling is excluded from computation of time. The 14 day period therefore commenced on 5th August 2026 and expired on 19th August 2026. The Applicant relies on Garamu v Karisa & 3 Others (Election Petition Appeal (Application) 1 of 2023) [2023] KECA 924 (KLR), where the Court of Appeal affirmed that the day on which a judgment is delivered is excluded when computing the prescribed period.
36. As to the threshold for preservatory relief, the Applicant submits that the intended appeal is arguable and raises serious questions for determination by the Court of Appeal, without asking this Court to determine those questions on their merits. The principal issues include whether commencement of EPCO’s execution automatically crystallised KCB’s floating charge or whether, under Clause 15(d) of the Supplemental Debenture, crystallisation on the ground of execution was subject to the stipulated 14-day period; and whether KCB’s subsequent assertion of crystallisation could defeat EPCO’s pre-existing execution rights over assets already specifically identified and attached. The Applicant relies on I & M Bank Kenya Limited & Another v Synergy Industrial Credit Limited & 2 Others (Civil Appeals Nos. E758 & E788 of 2021 (Consolidated)) [2024] KECA 855 (KLR). It is argued that these are not frivolous questions and should be left for determination by the Court of Appeal.
37. The Applicant further submits that the nugatory limb is particularly compelling because the proclaimed assets constitute the substratum of the intended appeal. While relying on National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer, Civil Appeal No. 195 of 2004 [2005] KECA 1 (KLR) and Isaac Miano Ngethe v Principal Administrative Secretary & Another, Miscellaneous Application No. E689 of 2022 [2024] KEHC 6633 (KLR), it argues that once goods are lawfully proclaimed and attached pursuant to the Rules of the Court, they come into custodia legis and the attachment remains subsisting until lawfully brought to an end. The Applicant contends that, in the present case, the attachment remained subsisting while its challenge to KCB’s asserted priority was pending before this Court and that no order of the Court authorised the Joint Receivers to dispose of the proclaimed assets. KCB’s subsequent disclosure that the Joint Receivers proceeded to sell part of the assets therefore demonstrates that the apprehended dissipation is real rather than speculative.
38. The Applicant places particular emphasis on the Asset Sale Agreement dated 8th June 2026 between the Joint Receivers and Assistiva Foods Limited for the sale of Proctor & Allan’s plant and machinery for Kshs 380,430,000 which was executed more than two months before this Court delivered its ruling of 4th August 2026 and while KCB’s asserted priority over the proclaimed assets remained the subject of pending proceedings.
39. It submits that, at the time of the sale, the assets were still under a subsisting attachment and in custodia legis, and that the Joint Receivers proceeded with the transaction without first obtaining an order of this Court authorising or sanctioning disposal. The Applicant therefore argues that KCB cannot rely on its consent to the transaction, whether as existing lender or purchaser, to confer legitimacy upon a sale undertaken while the ownership and priority rights in the assets were still sub judice. In this regard, the Applicant relies on Wambui v Mwangi & 3 Others (Civil Appeal 465 of 2019) [2021] KECA 144 (KLR) for the proposition that a court ought not to enforce or give effect to an illegal transaction once its illegality is brought to its attention. It submits that the court should not permit KCB and the Joint Receivers to rely upon completion of the sale as a means of defeating the pending proceedings or converting a disputed transaction into an accomplished fact. The Applicant consequently urges the court to disregard the purported sale for purposes of the present application and preserve both the remaining proclaimed assets and the proceeds of the sale pending the Court of Appeal’s consideration of the Rule 5(2)(b) application.
40. On the receivership and EPCO’s pre-existing execution rights, the Applicant submits that the appointment of the Joint Receivers did not, without more, extinguish or displace EPCO’s rights arising from the attachment effected on 20th February 2025. While relying on Surya Holdings Limited & 2 Others v CFC Stanbic Bank Limited [2015] KEHC 2209 (KLR) and In re Arvind Engineering Limited [2019] KEHC 12266 (KLR), it submits that a receiver and manager appointed under a debenture acts as an agent of the company and must exercise the powers conferred by the debenture and the law, while remaining accountable for the company’s property and affairs. It also relies on I&M Bank Limited v Mitini Scapes Development Limited (Insolvency Cause E107 of 2024) [2025] KEHC 5491 (KLR) to distinguish receivership from statutory administration. On that basis, the Applicant argues that the appointment of the Joint Receivers did not automatically constitute a statutory moratorium or confer upon them an unfettered right to disregard EPCO’s pre-existing proclamation and attachment; rather, the legal effect and priority of KCB’s security vis-à-vis EPCO’s execution are precisely the matters reserved for determination by the Court of Appeal.
41. The Applicant submits that the balance of convenience and interests of justice overwhelmingly favour preservation. The Applicant therefore urges the court to preserve the remaining proclaimed assets and the proceeds of the purported sale and in particular, to disregard the sale as incapable of conferring lawful title or interest pending determination of the competing claims by the appellate court.
Objector’s submissions
42. The Objector opposes EPCO Builders Limited’s Notice of Motion dated 25th August 2026. The Objector identifies three issues for determination: whether the application constitutes an abuse of the Court process; whether the requirements for an injunction under Order 42 Rule 6 of the Civil Procedure Rules have been met; and whether the circumstances justify interference with the functions of the Joint Receivers.
43. On abuse of the Court process and hierarchy of courts, the Objector submits that EPCO has simultaneously approached this Court under Order 42 Rule 6 and the Court of Appeal under Rule 5(2)(b), seeking substantially the same relief in respect of the same Proclaimed Assets. It argues that although both courts possess jurisdiction to grant interim relief pending appeal, that jurisdiction cannot properly be exercised concurrently once the Court of Appeal has seized the matter and issued directions. Reliance is placed on African Banking Corporation Limited v Intex Construction Limited & another [2021] KEHC 7594 (KLR), where the Court emphasised respect for the hierarchy of courts. The Objector further relies on Bia Tosha Distributors Limited & Another v East Africa Breweries Limited & Others, Milimani High Court Petition No. 249 of 2016 (unreported). The Objector therefore contends that EPCO’s election to proceed before the Court of Appeal was definitive and that its return to the High Court amounts to forum shopping and an abuse of process. It further relies on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] KECA 453 (KLR) and Republic v Kariuki & 3 Others; Law Society of Kenya (Ex parte Applicant) [2020] KEHC 10142 (KLR) on abuse of the court process.
44. On the requirements for an injunction under Order 42 Rule 6, the Objector submits that the jurisdiction under Order 42 Rule 6(6) is available only where the High Court is exercising its appellate jurisdiction. It relies on Matheta (Suing as the Legal Representative of the Estate of the Late Janet Ciomithea Matheta) v M’Mwenda [2026] KEELC 5003 (KLR), which identified the applicable principles as including that the intended appeal must not be frivolous, refusal of the injunction must threaten to render the appeal nugatory, and the grant of the injunction must not occasion greater hardship.
45. The Objector argues that the present proceedings are not appellate proceedings. EPCO’s original proceedings concerned an application to set aside an arbitral award under section 35 of the Arbitration Act, followed by an application for recognition and enforcement of the award. The resulting ruling recognising the award was therefore not a judgment from a subordinate court or tribunal against which an appeal lies to the High Court. In support, the Objector relies on Gachuhi & another v Evangelical Mission for Africa & another; Law Society of Kenya (Interested Party) [2023] KECA 51 (KLR). The Objector also relies on Associated Motors Limited v Sekura International Limited [2023] KEHC 3125 (KLR), as well as Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd & Another [2019] eKLR, Synergy Industrial Credit Ltd v Cape Holdings Ltd [2019] eKLR, Equity Bank Limited v Adopt a Light Limited, ML HC Misc. Application No. 435 of 2013 [2014] eKLR, and Kenya Oil Company Limited & Another v Kenya Pipeline Company Limited, NRB CA Civil Appeal No. 102 of 2012 [2014] eKLR, for the proposition that a court dealing with an application to set aside an arbitral award is not sitting as an appellate court. Consequently, the Objector contends that Order 42 Rule 6(6) is inapplicable.
46. The Objector further argues that there is no valid Notice of Appeal upon which an intended appeal can be founded. EPCO’s Notice of Appeal is dated 18th August 2026 but was lodged on 19th August 2026, which the Objector says was outside the 14 day period presc
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