1. The plaintiff/applicant filed a Notice of Motion application dated 3rd December 2024 pursuant to the provisions of Order 39 Rules 1, 2, 5 & 6, Order 26 Rule 1, Order 40 Rules 1 & 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1, 1A & 3A of the Civil Procedure Act and all other enabling provisions of law. The plaintiff prays for issuance of a Mareva injunction freezing all the defendants’ movable and immovable assets, including assets held in the name of the 1st interested party and funds in specified bank accounts and any other accounts, safe deposit boxes, or CDSC accounts within Kenya, pending the hearing and determination of the main suit.
2. The plaintiff also prays for orders restraining the defendants, their agents, servants, or employees from selling or disposing of any of their assets, an order that the defendants be ordered to deposit security in the sum of Kshs.244,716,800/=, being the amount claimed in the suit, a mandatory injunction compelling payment of the said sum and an order for conditional attachment before judgment of Land Title No. Nairobi/Block 149/1205 and several specified motor vehicles registered in the names of the defendants and the 1st interested party.
3. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Ms Rebecca Wambui Kiarie, the plaintiff herein. Ms Kiarie averred that she entered into a series of Loan Agreements with the defendants amounting to Kshs.75,889,000/=, repayable with 10% interest, which accrued to Kshs.46,469,400/=, and subject to a 20% monthly penalty in the event of default. She claimed that upon breach by the defendants and after issuing demands, the parties executed a further Agreement dated 15th August 2024, consolidating the debt to Kshs.122,358,400/=, with a penalty clause in the event of default. Ms Kiarie contended that the defendants assured her that they held Kshs.176,000,000/= in fixed deposit accounts at Absa Bank Kenya PLC and pledged Land Title No. Nairobi/Block 149/1205 as collateral, representing it to be free of encumbrances.
4. Ms Kiarie averred that despite acknowledging the debt, the defendants failed to pay and issued dishonored cheques drawn on Absa Bank Kenya Plc and Kenya Commercial Bank, which matter was reported to the Central Police Station. She stated that the drawer of the cheques, the 1st interested party company, is owned by the defendants. Ms Kiarie averred that the defendants filed frivolous suits, namely Nairobi High Court HCCHRPET No. E595 of 2024 and Milimani MCCC No. E5447 of 2024, to frustrate her recovery efforts. She contended that the defendants are heavily indebted, face potential lawsuits, and have begun charging their assets to defeat execution of any decree. She asserted that she has established a prima facie case based on the admission of debt, and that the defendants hold assets within the Court’s jurisdiction. She claimed that the defendants are planning to abscond and have been charged in Milimani Criminal Case No. E213 of 2024 for offences which include issuing of bad cheques under Section 316A of the Penal Code.
5. In opposition to the plaintiff’s application, the defendants and the 1st interested party filed a Notice of Preliminary Objection dated 13th December 2024, raising the following grounds –
i) The Honorable Court lacks proper jurisdiction to hear and determine this matter as the same issues are being litigated between the same parties in HCCHR Petition No. E672 of 2024 at Milimani Nairobi, MCCC No. E5447 of 2024 at Milimani Nairobi and SCCCOMM. No. E18712 of 2024 at Milimani Nairobi; and
ii) The plaintiff’s/applicant’s Notice of Motion and plaint both dated 3rd December, 2024 are bad in law, an abuse of Court process as inter alia it offend (sic) Section 6 of the Civil Procedure Act (Cap 21) Laws of Kenya, and should be struck out and expunged from court records with costs. Sic
6. The defendants and the 1st interested party also filed a replying affidavit sworn on 13th December 2024 by Mr. Nikesh Popatlal Shah, the 1st defendant herein. Mr. Popatlal averred that the application herein offends the provisions of Section 6 of the Civil Procedure Act on account of pending related matters, being MCCC No. E5447 of 2024, HCCHR Petition No. E672 of 2024 and SCCCOMM No. E18712 of 2024. He further averred that the defendants dealings with the plaintiff were based on a verbal arrangement introduced by a Bank Manager, under which she advanced various short-term loans to the 1st interested party through bank deposits between 2021 and 2024 at branches including Jogoo Road and others, at an agreed interest of 5% per month, and that all such loans were repaid through cheques, cash, and Mpesa transfers.
7. Mr. Popatlal stated that CCTV evidence will be sought to demonstrate cash repayments and maintain that no parallel written Agreements as alleged by the plaintiff existed. He contended that certain bank documents annexed by the plaintiff were unlawfully obtained and that they may seek to join additional parties, including the Data Commissioner, the Data Protection Authority, and Kenya Bankers Association, to this suit. Mr. Popatlal accused the plaintiff and the said Bank Manager of confiscating their passports, procuring signed blank cheques under false pretences, and subsequently inserting inflated amounts in the cheques with the intention of causing them to be dishonored, leading to criminal charges under Section 316A of the Penal Code. He denied any intention to abscond the jurisdiction of this Court and stated that some of the motor vehicles cited are charged to third-party financiers, whose interests would be prejudiced by an order of attachment.
8. In a rejoinder to the defendants’ and the 1st interested party’s replying affidavit, the plaintiff filed a supplementary affidavit sworn on 21st February 2025 by Ms Rebecca Wambui Kiarie, the plaintiff herein. She deposed that Section 6 of the Civil Procedure Act is inapplicable, as Milimani MCCC No. E5447 of 2024 and HCCHR Petition No. E672 of 2024 concern distinct subject matters including restraining and conservatory orders respectively, and are unrelated to her breach of contract claim. She further stated that Milimani SCCCOMM No. E18712 of 2024 had been withdrawn prior to the institution of this suit and accused the defendants of bad faith and material non-disclosure. Ms Kiarie dismissed the defendants’ allegations of forgery and irrelevance, asserting that the transactions they have relied on, fall outside the period of the subject matter herein.
9. She denied obtaining any confidential information from the alleged bank official and maintained that the allegations regarding passport confiscation and related matters amount to forum shopping intended to delay justice. She asserted that the defendants have effectively admitted issuing bad cheques and noted that they are facing criminal proceedings in Milimani MCCR No. E213 of 2024. She denied any access to, or manipulation of the defendants’ cheque books and characterized their claims regarding blank signed cheques as implausible. She maintained that the inhibition and injunctive orders sought over the defendants’ motor vehicles and properties are preservatory in nature, and do not prejudice third-party creditors, but are necessary to safeguard the subject matter of the suit.
10. The application herein and the defendants’ and the 1st interested party’s Preliminary Objection were canvassed by way of written submissions. The plaintiff’s submissions were filed on 16th September 2025 by the law firm of Bizimana Associate Advocates. This Court notes that despite having granted the defendants additional time on 16th September 2025 to file their written submissions, they had not complied with those directions as at the time of writing this Ruling.
11. I note that the plaintiff filed a response to the Notice of Preliminary Objection. The said response is struck out as it is factual in nature. The only type of a response that can be filed in response to a Notice Preliminary Objection is written submissions.
12. Mr. Bizimana, learned Counsel for the plaintiff submitted that a Preliminary Objection must be confined to a pure point of law capable of disposing of a suit without recourse to contested facts, as established by the Court in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. He argued that the instant objection is premised on disputed factual issues concerning the pendency, status, and substance of other suits. On the issue of whether the application herein and this suit are sub judice, Counsel cited the provisions of Section 6 of the Civil Procedure Act and submitted that the rule bars multiplicity of identical suits but not distinct proceedings.
13. Mr. Bizimana relied on written Loan Agreements evidencing advancement of Kshs.75,889,000/= and a subsequent Agreement dated 15th August 2024 acknowledging a consolidated debt of Kshs.122,358,400/=, which he termed as a clear admission of liability. He asserted that the defendants breached the Agreement, triggering a 20% penalty clause and escalating the debt to Kshs.244,716,800/=. He pointed out dishonored cheques, and referred to pending criminal proceedings in Milimani Criminal Case No. E213 of 2024, as indicative of fraudulent conduct. To buttress these submissions, Counsel relied on the case of Giella v Cassman Brown & Co Ltd [1973] EA 358 and the Court of Appeal case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR).
14. On the issue of the risk of dissipation, Counsel argued that the defendants have begun charging properties after notice of intention to sue, have replaced their passports indicating intent to abscond and have engaged in what he terms as frivolous litigation, including HCCHRPET No. E595 of 2024 and MCCC No. E5447 of 2024, to delay the plaintiff’s claim. He further relied on their issuance of dishonored cheques as evidence of a pattern of disregard for legal obligations. Mr. Bizimana cited the decisions made in Kenya Commercial Bank Limited v Sun City Properties Limited & 5 others [2012] KEHC 5872 (KLR), which underscores that evidence of asset transfers, charging of property, or intention to abscond justifies a freezing order to prevent a defendant from becoming judgment-proof.
15. In the end, Counsel submitted that the balance of convenience tilts in favour of granting the orders being sought herein, since the plaintiff faces irreparable harm in the potential loss of over Kshs.244,000,000/= if the assets are dissipated, whereas the defendants would suffer minimal prejudice since the orders being sought, merely preserve the status quo. While acknowledging that a mandatory injunction for payment at an interlocutory stage is exceptional, Counsel urged this Court to prioritize the preservatory Mareva orders.
ANALYSIS AND DETERMINATION.
16. I have considered the instant application, the grounds on the face of it, and the affidavits filed in support thereof. I have also considered the replying affidavit by the defendant and the 1st interested party, and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether this suit and the instant application offend the provisions of Section 6 of the Civil Procedure Act;
ii) Whether the plaintiff is entitled to the Mareva (freezing) injunction sought; and
iii) Whether the plaintiff is entitled to the ancillary reliefs sought.
Whether this suit and the instant application offend the provisions of Section 6 of the Civil Procedure Act.
17. The defendants contended that this matter is sub judice in view of the pendency of HCCHR Petition No. E672 of 2024, MCCC No. E5447 of 2024 and SCCCOMM No. E18712 of 2024. They argued that these proceedings offend the provisions of Section 6 of the Civil Procedure Act and should therefore be struck out.
18. The doctrine of sub judice is provided for under the provisions of Section 6 of the Civil Procedure Act, which states that –
No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
19. The rationale behind the doctrine of sub judice is to prevent having conflicting orders emanating from two or more different Courts over the same subject matter. A five-judge bench in the case of Ndii & others v Attorney General & others [2021] KEHC 9746 (KLR), had this to say in regard to the doctrine of sub judice –
The rationale behind this provision (Section 6 of the Civil Procedure Act) is that it is vexatious and oppressive for a claimant to sue concurrently in two courts. Where there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of those courts, and the court will….
20. In order for the doctrine of sub judice to be successfully invoked, the person relying on it has to demonstrate that the matter in issue in the subsequent suit is directly and substantially in issue in the previously instituted suit, proceedings must be between the same parties, or between parties under whom they or any of them claim, litigating under the same title and such suit or proceeding must be pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.
21. The plaintiff averred that the aforesaid matters are distinct from these proceedings. The record shows that SCCCOMM No. E18712 of 2024 was withdrawn on 27th January 2025 following a Notice of Withdrawal of Suit dated 29th November 2024, which is evidently prior to the institution of this suit. It cannot therefore be said that this suit is sub judice SCCCOMM No. E18712 of 2024.
22. Upon perusal of the pleadings filed in HCCHR Petition No. E672 of 2024, it is manifest that it concerns alleged constitutional violations and the grant of conservatory reliefs, whereas MCCC No. E5447 of 2024 relates to a separate soft loan transaction of Kshs.4,500,000/= granted to the 1st interested party by the plaintiff. In addition to the foregoing, this Court is not persuaded that the defendants have successfully demonstrated that the issues raised in HCCHR Petition No. E672 of 2024 and MCCC No. E5447 of 2024 are directly and substantially the same as those raised in the instant application and this suit, which arise from the alleged written Loan Agreements and the Consolidated Debt Agreement dated 15th August 2024.
23. Accordingly, this Court finds that this suit and the instant application do not offend the provisions of Section 6 of the Civil Procedure Act, hence the suit and application herein are not sub judice HCCHR Petition No. E672 of 2024 and MCCC No. E5447 of 2024.
Whether the plaintiff is entitled to the Mareva (freezing) injunction sought.
24. The plaintiff seeks wide-ranging orders to freeze all the defendants’ movable and immovable assets, including assets held in the name of the 1st interested party and funds in specified bank accounts and any other accounts, safe deposit boxes, or CDSC accounts within Kenya. It is now well settled that the principles governing the grant of a Mareva injunction are distinct from those applicable to ordinary interlocutory injunctions. Mareva injunctions are provided for under Order 39 Rule 5 of the Civil Procedure Rules, 2010, which states that –
1) Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him -
a) is about to dispose of the whole or any part of his property;
b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.
3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
25. In Kanduyi Holdings Limited v Balm Kenya Foundation & another [2013] KEHC 3044 (KLR), the Court held as follows–
Accordingly, Order 39 Rules 5 and 6 of the CPR should operate within known dimensions of law drawing from the above case [Mareva Compania Navierra SA v International Bulkcarriers SA [1975] 2 Lloyd dis Rep 509] and other judicial precedents on the subject. Order 39 rule 5 and 6 of the CPR is not to be used to: 1) pressure a defendant; or 2) as a type of asset stripping (forfeiture); or 3) as a conferment of some proprietary rights on the plaintiff upon the assets of the Defendant. The purposes of any order that should be issued under Order 39 Rules 5 and 6 of the CPR is to prevent the Defendants or would be judgment-debtor from dissipating his assets as to have the effect of obstructing or delaying the execution of any decree that may be passed against him’’. (Emphasis added)
26. In Beta Healthcare International Limited v Grace Mumbi Githaiga & 2 others [2016] KEHC 7881 (KLR), the Court laid down the principles governing the grant of a freezing injunction as hereunder -
a) The claimant has ‘a good arguable case’ based on a pre-existing cause of action;
b) The claim is one over which the court has jurisdiction;
c) The defendant appears to have assets within the jurisdiction;
d) There is a real risk that those assets will be removed from the jurisdiction or otherwise dissipated if the injunction is not granted; and
e) There is a balance of convenience in favour of granting the injunction;
f) The Court can also order disclosure of documents or the administration of requests for further information to assist the claimant in ascertaining the location of the defendant’s assets. (Emphasis added).
27. As to whether the plaintiff has an arguable case against the defendants, the record shows that the plaintiff has produced several written Loan Agreements demonstrating advancement of Kshs.75,889,000/= and a subsequent Agreement dated 15th August 2024 acknowledging a consolidated debt of Kshs.122,358,400/=. The plaintiff averred that the defendants’ default in repaying the aforesaid loans triggered a 20% penalty clause, escalating the plaintiff’s claim against the defendants to Kshs.244,716,800/=. The defendants however disputed the existence of the written Agreements and asserted that all loans advanced to them by the plaintiff were pursuant to a verbal arrangement at 5% interest per month, which loans were fully repaid.
28. It is now well settled that at this interlocutory stage, this Court is not required to make definitive findings of fact, but to determine whether the material presented discloses an arguable right deserving of protection. This Court is of the considered view that in light of the existence of a signed Consolidated Agreement acknowledging a specified debt, coupled with the admitted issuance of cheques that were dishonored, culminating in criminal proceedings, the plaintiff has demonstrated that she has an arguable case against the defendants
29. It is not disputed that this Court has the requisite jurisdiction to hear and determine the dispute between the parties herein. It is also not in contest that the defendants and the 1st interested party have assets within the local limits of this Court’s jurisdiction. This Court therefore has to ascertain whether the plaintiff has established a real risk, that the defendants may dissipate or remove their assets from the Court’s jurisdiction with the intention of obstructing or delaying the enforcement of any decree that may eventually be issued, so as to determine whether or not to grant an order of Mareva injunction.
30. In this case, the plaintiff averred that the defendants have begun charging their properties to secure unnecessary loans with the intent of obstructing the decree that may be ultimately passed against them after learning of the potential law suits that may be filed against them. The plaintiff further averred that the defendants have also replaced their passports, suggesting intent to abscond the jurisdiction of this Court. The defendants on the other hand denied any intention to flee this Court’s jurisdiction and contended that some of the assets that the plaintiff seeks a Mareva injunction against, are already encumbered to third-party financiers.
31. While mere indebtedness is insufficient to warrant a freezing order, evidence that a defendant has taken steps to encumber property after a dispute has arisen is a relevant consideration. It is trite law that the power to grant attachment or freezing orders before judgment must be exercised sparingly, and only upon clear proof of the mischief aimed at, by the law. Upon perusal of the plaintiff’s affidavits in support of the application herein, it is clear that there is prima facie evidence of property being charged after demand, which has not been satisfactorily explained. Accordingly, this coupled with the dishonored cheques and pending criminal proceedings, points to a real risk that the defendants and the 1st interested party may deal with their assets in a manner prejudicial to the plaintiff’s claim.
32. This Court is therefore persuaded that the balance of convenience tilts in favour of the plaintiff who seeks preservation of assets to secure a claim exceeding Kshs.244,000,000/=. Furthermore, it is evident that the orders being sought herein by the plaintiff, are preservatory and do not transfer ownership of the defendants’ and the 1st interested party’s moveable and immovable assets to the plaintiff.
33. Accordingly, I find that the plaintiff has met the threshold for being granted an order of Mareva injunction.
Whether the plaintiff is entitled to the ancillary reliefs sought.
34. The plaintiff also seeks orders for deposit of security equivalent to the claimed sum, conditional attachment before judgment, and a mandatory injunction compelling payment at this interlocutory stage.
35. An order for security or attachment before judgment under Order 39 is granted where the Court is satisfied that a defendant intends to obstruct or delay execution by disposing of property. Although there is evidence suggesting a risk of dissipation of the defendants' and the 1st interested party’s movable and immovable assets, attachment before judgment is a severe remedy and must be exercised cautiously. Given that a freezing order sufficiently secures the substratum of the suit, attachment before judgment of specific properties, particularly, where third-party interests are alleged, would be disproportionate at this stage.
36. In regard to the prayer for a mandatory injunction compelling payment of Kshs.244,716,800/=, it is now well settled that an order of an interlocutory mandatory injunction is given sparingly. This position was stated by the Court of Appeal in the case of Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma [2020] KECA 831 (KLR), as follows -
As this Court stated in Kenya Breweries Limited & another vs. Washington O. Okeyo [2002] eKLR a mandatory injunction can be granted on an interlocutory applications as well as at the hearing but should not normally be granted in the absence of special circumstances but that if a case is clear and which the court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory application.
37. It is trite that a mandatory injunction is final in nature and can only be granted in the clearest of cases and only where there exists special circumstances to warrant such an order being granted. The defendants have raised substantial disputes regarding the validity of the Agreements and the quantum claimed. These are matters for trial. Furthermore, this Court has already found that a Mareva injunction freezing the defendants’ and 1st interested party’s movable and immovable assets should issue. It is my considered view that in the circumstances of this case, it would be inappropriate to grant a mandatory order for payment of the sums claimed by the plaintiff in this suit, at this interlocutory stage.
38. It is my finding that the plaintiff’s application herein is partly merited and the defendants’ and the 1st interested party’s Preliminary Objection is not merited. As a result, I make the following orders, pending the hearing and determination of this suit -
i) I hereby issue an order of Mareva injunction freezing all the movable and immovable assets of the defendants including assets held in the name of the 1st interested party but registered under the names of the defendants, whether contained in Account Nos. 2047050084/1, 2047050084/2, 2047050084/4, 2047050084/8 and 2047050084/9 with the 1st interested party, Account No. 1291068937 with the 2nd interested party, Account No. 0005253556 with the 4th interested party, and any other bank accounts within Kenya, safe deposit boxes, or CDSC accounts;
ii) I hereby issue an order of Mareva injunction restraining the defendants and the 1st respondent, their agents, servants or employees from selling and/or disposing of any of their assets; and
iii) Costs shall be in the cause.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 13th day of February 2026. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. Bizimana for the plaintiff
Ms Maina h/b Mr. Thuku for the 1st and 2nd defendants
No appearance for the interested parties
Ms B. Wokabi – Court Assistant.
2. The plaintiff also prays for orders restraining the defendants, their agents, servants, or employees from selling or disposing of any of their assets, an order that the defendants be ordered to deposit security in the sum of Kshs.244,716,800/=, being the amount claimed in the suit, a mandatory injunction compelling payment of the said sum and an order for conditional attachment before judgment of Land Title No. Nairobi/Block 149/1205 and several specified motor vehicles registered in the names of the defendants and the 1st interested party.
3. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Ms Rebecca Wambui Kiarie, the plaintiff herein. Ms Kiarie averred that she entered into a series of Loan Agreements with the defendants amounting to Kshs.75,889,000/=, repayable with 10% interest, which accrued to Kshs.46,469,400/=, and subject to a 20% monthly penalty in the event of default. She claimed that upon breach by the defendants and after issuing demands, the parties executed a further Agreement dated 15th August 2024, consolidating the debt to Kshs.122,358,400/=, with a penalty clause in the event of default. Ms Kiarie contended that the defendants assured her that they held Kshs.176,000,000/= in fixed deposit accounts at Absa Bank Kenya PLC and pledged Land Title No. Nairobi/Block 149/1205 as collateral, representing it to be free of encumbrances.
4. Ms Kiarie averred that despite acknowledging the debt, the defendants failed to pay and issued dishonored cheques drawn on Absa Bank Kenya Plc and Kenya Commercial Bank, which matter was reported to the Central Police Station. She stated that the drawer of the cheques, the 1st interested party company, is owned by the defendants. Ms Kiarie averred that the defendants filed frivolous suits, namely Nairobi High Court HCCHRPET No. E595 of 2024 and Milimani MCCC No. E5447 of 2024, to frustrate her recovery efforts. She contended that the defendants are heavily indebted, face potential lawsuits, and have begun charging their assets to defeat execution of any decree. She asserted that she has established a prima facie case based on the admission of debt, and that the defendants hold assets within the Court’s jurisdiction. She claimed that the defendants are planning to abscond and have been charged in Milimani Criminal Case No. E213 of 2024 for offences which include issuing of bad cheques under Section 316A of the Penal Code.
5. In opposition to the plaintiff’s application, the defendants and the 1st interested party filed a Notice of Preliminary Objection dated 13th December 2024, raising the following grounds –
i) The Honorable Court lacks proper jurisdiction to hear and determine this matter as the same issues are being litigated between the same parties in HCCHR Petition No. E672 of 2024 at Milimani Nairobi, MCCC No. E5447 of 2024 at Milimani Nairobi and SCCCOMM. No. E18712 of 2024 at Milimani Nairobi; and
ii) The plaintiff’s/applicant’s Notice of Motion and plaint both dated 3rd December, 2024 are bad in law, an abuse of Court process as inter alia it offend (sic) Section 6 of the Civil Procedure Act (Cap 21) Laws of Kenya, and should be struck out and expunged from court records with costs. Sic
6. The defendants and the 1st interested party also filed a replying affidavit sworn on 13th December 2024 by Mr. Nikesh Popatlal Shah, the 1st defendant herein. Mr. Popatlal averred that the application herein offends the provisions of Section 6 of the Civil Procedure Act on account of pending related matters, being MCCC No. E5447 of 2024, HCCHR Petition No. E672 of 2024 and SCCCOMM No. E18712 of 2024. He further averred that the defendants dealings with the plaintiff were based on a verbal arrangement introduced by a Bank Manager, under which she advanced various short-term loans to the 1st interested party through bank deposits between 2021 and 2024 at branches including Jogoo Road and others, at an agreed interest of 5% per month, and that all such loans were repaid through cheques, cash, and Mpesa transfers.
7. Mr. Popatlal stated that CCTV evidence will be sought to demonstrate cash repayments and maintain that no parallel written Agreements as alleged by the plaintiff existed. He contended that certain bank documents annexed by the plaintiff were unlawfully obtained and that they may seek to join additional parties, including the Data Commissioner, the Data Protection Authority, and Kenya Bankers Association, to this suit. Mr. Popatlal accused the plaintiff and the said Bank Manager of confiscating their passports, procuring signed blank cheques under false pretences, and subsequently inserting inflated amounts in the cheques with the intention of causing them to be dishonored, leading to criminal charges under Section 316A of the Penal Code. He denied any intention to abscond the jurisdiction of this Court and stated that some of the motor vehicles cited are charged to third-party financiers, whose interests would be prejudiced by an order of attachment.
8. In a rejoinder to the defendants’ and the 1st interested party’s replying affidavit, the plaintiff filed a supplementary affidavit sworn on 21st February 2025 by Ms Rebecca Wambui Kiarie, the plaintiff herein. She deposed that Section 6 of the Civil Procedure Act is inapplicable, as Milimani MCCC No. E5447 of 2024 and HCCHR Petition No. E672 of 2024 concern distinct subject matters including restraining and conservatory orders respectively, and are unrelated to her breach of contract claim. She further stated that Milimani SCCCOMM No. E18712 of 2024 had been withdrawn prior to the institution of this suit and accused the defendants of bad faith and material non-disclosure. Ms Kiarie dismissed the defendants’ allegations of forgery and irrelevance, asserting that the transactions they have relied on, fall outside the period of the subject matter herein.
9. She denied obtaining any confidential information from the alleged bank official and maintained that the allegations regarding passport confiscation and related matters amount to forum shopping intended to delay justice. She asserted that the defendants have effectively admitted issuing bad cheques and noted that they are facing criminal proceedings in Milimani MCCR No. E213 of 2024. She denied any access to, or manipulation of the defendants’ cheque books and characterized their claims regarding blank signed cheques as implausible. She maintained that the inhibition and injunctive orders sought over the defendants’ motor vehicles and properties are preservatory in nature, and do not prejudice third-party creditors, but are necessary to safeguard the subject matter of the suit.
10. The application herein and the defendants’ and the 1st interested party’s Preliminary Objection were canvassed by way of written submissions. The plaintiff’s submissions were filed on 16th September 2025 by the law firm of Bizimana Associate Advocates. This Court notes that despite having granted the defendants additional time on 16th September 2025 to file their written submissions, they had not complied with those directions as at the time of writing this Ruling.
11. I note that the plaintiff filed a response to the Notice of Preliminary Objection. The said response is struck out as it is factual in nature. The only type of a response that can be filed in response to a Notice Preliminary Objection is written submissions.
12. Mr. Bizimana, learned Counsel for the plaintiff submitted that a Preliminary Objection must be confined to a pure point of law capable of disposing of a suit without recourse to contested facts, as established by the Court in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. He argued that the instant objection is premised on disputed factual issues concerning the pendency, status, and substance of other suits. On the issue of whether the application herein and this suit are sub judice, Counsel cited the provisions of Section 6 of the Civil Procedure Act and submitted that the rule bars multiplicity of identical suits but not distinct proceedings.
13. Mr. Bizimana relied on written Loan Agreements evidencing advancement of Kshs.75,889,000/= and a subsequent Agreement dated 15th August 2024 acknowledging a consolidated debt of Kshs.122,358,400/=, which he termed as a clear admission of liability. He asserted that the defendants breached the Agreement, triggering a 20% penalty clause and escalating the debt to Kshs.244,716,800/=. He pointed out dishonored cheques, and referred to pending criminal proceedings in Milimani Criminal Case No. E213 of 2024, as indicative of fraudulent conduct. To buttress these submissions, Counsel relied on the case of Giella v Cassman Brown & Co Ltd [1973] EA 358 and the Court of Appeal case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR).
14. On the issue of the risk of dissipation, Counsel argued that the defendants have begun charging properties after notice of intention to sue, have replaced their passports indicating intent to abscond and have engaged in what he terms as frivolous litigation, including HCCHRPET No. E595 of 2024 and MCCC No. E5447 of 2024, to delay the plaintiff’s claim. He further relied on their issuance of dishonored cheques as evidence of a pattern of disregard for legal obligations. Mr. Bizimana cited the decisions made in Kenya Commercial Bank Limited v Sun City Properties Limited & 5 others [2012] KEHC 5872 (KLR), which underscores that evidence of asset transfers, charging of property, or intention to abscond justifies a freezing order to prevent a defendant from becoming judgment-proof.
15. In the end, Counsel submitted that the balance of convenience tilts in favour of granting the orders being sought herein, since the plaintiff faces irreparable harm in the potential loss of over Kshs.244,000,000/= if the assets are dissipated, whereas the defendants would suffer minimal prejudice since the orders being sought, merely preserve the status quo. While acknowledging that a mandatory injunction for payment at an interlocutory stage is exceptional, Counsel urged this Court to prioritize the preservatory Mareva orders.
ANALYSIS AND DETERMINATION.
16. I have considered the instant application, the grounds on the face of it, and the affidavits filed in support thereof. I have also considered the replying affidavit by the defendant and the 1st interested party, and the written submissions by Counsel for the parties. The issues that arise for determination are –
i) Whether this suit and the instant application offend the provisions of Section 6 of the Civil Procedure Act;
ii) Whether the plaintiff is entitled to the Mareva (freezing) injunction sought; and
iii) Whether the plaintiff is entitled to the ancillary reliefs sought.
Whether this suit and the instant application offend the provisions of Section 6 of the Civil Procedure Act.
17. The defendants contended that this matter is sub judice in view of the pendency of HCCHR Petition No. E672 of 2024, MCCC No. E5447 of 2024 and SCCCOMM No. E18712 of 2024. They argued that these proceedings offend the provisions of Section 6 of the Civil Procedure Act and should therefore be struck out.
18. The doctrine of sub judice is provided for under the provisions of Section 6 of the Civil Procedure Act, which states that –
No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
19. The rationale behind the doctrine of sub judice is to prevent having conflicting orders emanating from two or more different Courts over the same subject matter. A five-judge bench in the case of Ndii & others v Attorney General & others [2021] KEHC 9746 (KLR), had this to say in regard to the doctrine of sub judice –
The rationale behind this provision (Section 6 of the Civil Procedure Act) is that it is vexatious and oppressive for a claimant to sue concurrently in two courts. Where there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of those courts, and the court will….
20. In order for the doctrine of sub judice to be successfully invoked, the person relying on it has to demonstrate that the matter in issue in the subsequent suit is directly and substantially in issue in the previously instituted suit, proceedings must be between the same parties, or between parties under whom they or any of them claim, litigating under the same title and such suit or proceeding must be pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.
21. The plaintiff averred that the aforesaid matters are distinct from these proceedings. The record shows that SCCCOMM No. E18712 of 2024 was withdrawn on 27th January 2025 following a Notice of Withdrawal of Suit dated 29th November 2024, which is evidently prior to the institution of this suit. It cannot therefore be said that this suit is sub judice SCCCOMM No. E18712 of 2024.
22. Upon perusal of the pleadings filed in HCCHR Petition No. E672 of 2024, it is manifest that it concerns alleged constitutional violations and the grant of conservatory reliefs, whereas MCCC No. E5447 of 2024 relates to a separate soft loan transaction of Kshs.4,500,000/= granted to the 1st interested party by the plaintiff. In addition to the foregoing, this Court is not persuaded that the defendants have successfully demonstrated that the issues raised in HCCHR Petition No. E672 of 2024 and MCCC No. E5447 of 2024 are directly and substantially the same as those raised in the instant application and this suit, which arise from the alleged written Loan Agreements and the Consolidated Debt Agreement dated 15th August 2024.
23. Accordingly, this Court finds that this suit and the instant application do not offend the provisions of Section 6 of the Civil Procedure Act, hence the suit and application herein are not sub judice HCCHR Petition No. E672 of 2024 and MCCC No. E5447 of 2024.
Whether the plaintiff is entitled to the Mareva (freezing) injunction sought.
24. The plaintiff seeks wide-ranging orders to freeze all the defendants’ movable and immovable assets, including assets held in the name of the 1st interested party and funds in specified bank accounts and any other accounts, safe deposit boxes, or CDSC accounts within Kenya. It is now well settled that the principles governing the grant of a Mareva injunction are distinct from those applicable to ordinary interlocutory injunctions. Mareva injunctions are provided for under Order 39 Rule 5 of the Civil Procedure Rules, 2010, which states that –
1) Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him -
a) is about to dispose of the whole or any part of his property;
b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.
3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
25. In Kanduyi Holdings Limited v Balm Kenya Foundation & another [2013] KEHC 3044 (KLR), the Court held as follows–
Accordingly, Order 39 Rules 5 and 6 of the CPR should operate within known dimensions of law drawing from the above case [Mareva Compania Navierra SA v International Bulkcarriers SA [1975] 2 Lloyd dis Rep 509] and other judicial precedents on the subject. Order 39 rule 5 and 6 of the CPR is not to be used to: 1) pressure a defendant; or 2) as a type of asset stripping (forfeiture); or 3) as a conferment of some proprietary rights on the plaintiff upon the assets of the Defendant. The purposes of any order that should be issued under Order 39 Rules 5 and 6 of the CPR is to prevent the Defendants or would be judgment-debtor from dissipating his assets as to have the effect of obstructing or delaying the execution of any decree that may be passed against him’’. (Emphasis added)
26. In Beta Healthcare International Limited v Grace Mumbi Githaiga & 2 others [2016] KEHC 7881 (KLR), the Court laid down the principles governing the grant of a freezing injunction as hereunder -
a) The claimant has ‘a good arguable case’ based on a pre-existing cause of action;
b) The claim is one over which the court has jurisdiction;
c) The defendant appears to have assets within the jurisdiction;
d) There is a real risk that those assets will be removed from the jurisdiction or otherwise dissipated if the injunction is not granted; and
e) There is a balance of convenience in favour of granting the injunction;
f) The Court can also order disclosure of documents or the administration of requests for further information to assist the claimant in ascertaining the location of the defendant’s assets. (Emphasis added).
27. As to whether the plaintiff has an arguable case against the defendants, the record shows that the plaintiff has produced several written Loan Agreements demonstrating advancement of Kshs.75,889,000/= and a subsequent Agreement dated 15th August 2024 acknowledging a consolidated debt of Kshs.122,358,400/=. The plaintiff averred that the defendants’ default in repaying the aforesaid loans triggered a 20% penalty clause, escalating the plaintiff’s claim against the defendants to Kshs.244,716,800/=. The defendants however disputed the existence of the written Agreements and asserted that all loans advanced to them by the plaintiff were pursuant to a verbal arrangement at 5% interest per month, which loans were fully repaid.
28. It is now well settled that at this interlocutory stage, this Court is not required to make definitive findings of fact, but to determine whether the material presented discloses an arguable right deserving of protection. This Court is of the considered view that in light of the existence of a signed Consolidated Agreement acknowledging a specified debt, coupled with the admitted issuance of cheques that were dishonored, culminating in criminal proceedings, the plaintiff has demonstrated that she has an arguable case against the defendants
29. It is not disputed that this Court has the requisite jurisdiction to hear and determine the dispute between the parties herein. It is also not in contest that the defendants and the 1st interested party have assets within the local limits of this Court’s jurisdiction. This Court therefore has to ascertain whether the plaintiff has established a real risk, that the defendants may dissipate or remove their assets from the Court’s jurisdiction with the intention of obstructing or delaying the enforcement of any decree that may eventually be issued, so as to determine whether or not to grant an order of Mareva injunction.
30. In this case, the plaintiff averred that the defendants have begun charging their properties to secure unnecessary loans with the intent of obstructing the decree that may be ultimately passed against them after learning of the potential law suits that may be filed against them. The plaintiff further averred that the defendants have also replaced their passports, suggesting intent to abscond the jurisdiction of this Court. The defendants on the other hand denied any intention to flee this Court’s jurisdiction and contended that some of the assets that the plaintiff seeks a Mareva injunction against, are already encumbered to third-party financiers.
31. While mere indebtedness is insufficient to warrant a freezing order, evidence that a defendant has taken steps to encumber property after a dispute has arisen is a relevant consideration. It is trite law that the power to grant attachment or freezing orders before judgment must be exercised sparingly, and only upon clear proof of the mischief aimed at, by the law. Upon perusal of the plaintiff’s affidavits in support of the application herein, it is clear that there is prima facie evidence of property being charged after demand, which has not been satisfactorily explained. Accordingly, this coupled with the dishonored cheques and pending criminal proceedings, points to a real risk that the defendants and the 1st interested party may deal with their assets in a manner prejudicial to the plaintiff’s claim.
32. This Court is therefore persuaded that the balance of convenience tilts in favour of the plaintiff who seeks preservation of assets to secure a claim exceeding Kshs.244,000,000/=. Furthermore, it is evident that the orders being sought herein by the plaintiff, are preservatory and do not transfer ownership of the defendants’ and the 1st interested party’s moveable and immovable assets to the plaintiff.
33. Accordingly, I find that the plaintiff has met the threshold for being granted an order of Mareva injunction.
Whether the plaintiff is entitled to the ancillary reliefs sought.
34. The plaintiff also seeks orders for deposit of security equivalent to the claimed sum, conditional attachment before judgment, and a mandatory injunction compelling payment at this interlocutory stage.
35. An order for security or attachment before judgment under Order 39 is granted where the Court is satisfied that a defendant intends to obstruct or delay execution by disposing of property. Although there is evidence suggesting a risk of dissipation of the defendants' and the 1st interested party’s movable and immovable assets, attachment before judgment is a severe remedy and must be exercised cautiously. Given that a freezing order sufficiently secures the substratum of the suit, attachment before judgment of specific properties, particularly, where third-party interests are alleged, would be disproportionate at this stage.
36. In regard to the prayer for a mandatory injunction compelling payment of Kshs.244,716,800/=, it is now well settled that an order of an interlocutory mandatory injunction is given sparingly. This position was stated by the Court of Appeal in the case of Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma [2020] KECA 831 (KLR), as follows -
As this Court stated in Kenya Breweries Limited & another vs. Washington O. Okeyo [2002] eKLR a mandatory injunction can be granted on an interlocutory applications as well as at the hearing but should not normally be granted in the absence of special circumstances but that if a case is clear and which the court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory application.
37. It is trite that a mandatory injunction is final in nature and can only be granted in the clearest of cases and only where there exists special circumstances to warrant such an order being granted. The defendants have raised substantial disputes regarding the validity of the Agreements and the quantum claimed. These are matters for trial. Furthermore, this Court has already found that a Mareva injunction freezing the defendants’ and 1st interested party’s movable and immovable assets should issue. It is my considered view that in the circumstances of this case, it would be inappropriate to grant a mandatory order for payment of the sums claimed by the plaintiff in this suit, at this interlocutory stage.
38. It is my finding that the plaintiff’s application herein is partly merited and the defendants’ and the 1st interested party’s Preliminary Objection is not merited. As a result, I make the following orders, pending the hearing and determination of this suit -
i) I hereby issue an order of Mareva injunction freezing all the movable and immovable assets of the defendants including assets held in the name of the 1st interested party but registered under the names of the defendants, whether contained in Account Nos. 2047050084/1, 2047050084/2, 2047050084/4, 2047050084/8 and 2047050084/9 with the 1st interested party, Account No. 1291068937 with the 2nd interested party, Account No. 0005253556 with the 4th interested party, and any other bank accounts within Kenya, safe deposit boxes, or CDSC accounts;
ii) I hereby issue an order of Mareva injunction restraining the defendants and the 1st respondent, their agents, servants or employees from selling and/or disposing of any of their assets; and
iii) Costs shall be in the cause.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 13th day of February 2026. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. Bizimana for the plaintiff
Ms Maina h/b Mr. Thuku for the 1st and 2nd defendants
No appearance for the interested parties
Ms B. Wokabi – Court Assistant.