RULING ON EXTESION INTERIM ORDER
Full and accurate disclosure
1. As a matter of legal and evidentiary requirement, a party who seeks ex parte orders must make ‘full and frank disclosure’ of all relevant material facts to the court. Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR 1.
2. The court granted an interim order rescheduling the auction to 16.4.26 on, inter alia, the assumption that full and accurate disclosures of facts was made by the applicant. and that the facts pleaded are correct.
3. It has however turned out that the applicant did not make full and accurate disclosures of material facts relevant to this case.
4. The facts were brought to the attention of the court by Advocate Ondieki and the facts consist in the following matters: -
5. Pendency of HCCOMM/E515/2025 Chase Bank Kenya Limited (In Liquidation): Plaintiff – Oraro & Company Advocates Equity Bank (Kenya) Limited: 1st Defendant – HHM & Riverside Mews Limited: Interested Party
6. The case is pending before Mugambi J who declined an application for injunction to restrain exercise of statutory power of sale by the chargor in respect of all that property known as L.R. No. 4275/13 (I.R. 74510), being the Riverside Office Block (the "Suit Property").
7. Pendency of Civil Appeal NO. E1075 OF 2025 arising from the above suit in which the Court of Appeal determined the application for an injunction to stop the bank from exercising its statutory power of sale and allowed the bank to sell the property.
8. The applicant did not disclose in the Notice of Motion dated 19/03/2026 nor the Supporting Affidavit of 19/03/2026 these facts which are relevant to this case and relate to the subject matter directly.
9. Of pointed significance in the Ruling of Court of Appeal dated 13/03/2026 being an application for injunction pending hearing and determination of an appeal from the Ruling of the High Court at Nairobi (Dr. F. Mugambi, J) delivered on 28th November 2025 is reproduced below: -
“… 38. It is not in dispute that the respondent is a tier 1 bank, and in the event the appeal succeeds, it is capable of compensating the applicant for any loss that it may suffer as a result of sale of the suit property. The outstanding loan balance is in excess of Kshs 1.3 billion, a colossal amount of money, and the loan continues to accrue interest. If realization of the security id delayed any further, the outstanding sum may outstrip the value of the suit property, which will not be in the interest of any of the parties. If, after hearing the appeal, it turns out that the respondent ought not, in the circumstances, to have exercised its statutory power of sale, the value of the suit property is capable of being determined and the respondent will make good that loss.
39. For these reasons, we are satisfied that the appeal, if successful, shall not be rendered nugatory. As the applicant has not satisfied both limbs under rule 5(2)(b) of this Court’s Rules, we hereby dismiss this application with costs to the respondent. “
10. The applicant has argued that, although they were cited as interested parties in the suit before the High Court and the appeal thereto to the Court of Appeal, they were never served with summons or pleadings whatsoever. This argument immediately invites the question; whether such plea should not be made in the proceedings before the High Court or in the Court of Appeal in which orders directly affecting the charged property were made and pursuant to which the public auction subject of the proceedings before me is anchored. The arguments appear to be based on lack of service and being condemned unheard which may invoke action ex debito justitiae but in the correct forum.
11. The applicant has chosen to make the arguments in these proceedings. The dilemmas that approach create include; how this court will deal with the CoA ruling without entering into a real possibility of embarrassment or over-reach? The kind of distribution or extension of jurisdictional tentacles of this court being proposed by the applicant is problematic. This may not be the case if the applicant’s intervention was in the suit or appeal where it is cited as an interested party and adverse orders were made.
12. I do note that the primary suit has not concluded and has been fixed for pre-trial on 11.5.26 before Mugambi J.
13. Accordingly, it may be inappropriate to extend the interim orders herein in light of the revelations made by advocate Ondieki.
14. I take this view fully aware that these proceedings allege lack of statutory notices which argument could be made in the fora I have stated to bolster their quest to set aside the adverse orders.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 15th day April, 2026
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F. Gikonyo M
Judge
In the presence of: -
Kimani for Plaintiff
Ondieki for defendant
Ochiel for 1st Interested Party
Chege for 2nd Interested Party
CA – Ivan/Aggrey
Full and accurate disclosure
1. As a matter of legal and evidentiary requirement, a party who seeks ex parte orders must make ‘full and frank disclosure’ of all relevant material facts to the court. Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR 1.
2. The court granted an interim order rescheduling the auction to 16.4.26 on, inter alia, the assumption that full and accurate disclosures of facts was made by the applicant. and that the facts pleaded are correct.
3. It has however turned out that the applicant did not make full and accurate disclosures of material facts relevant to this case.
4. The facts were brought to the attention of the court by Advocate Ondieki and the facts consist in the following matters: -
5. Pendency of HCCOMM/E515/2025 Chase Bank Kenya Limited (In Liquidation): Plaintiff – Oraro & Company Advocates Equity Bank (Kenya) Limited: 1st Defendant – HHM & Riverside Mews Limited: Interested Party
6. The case is pending before Mugambi J who declined an application for injunction to restrain exercise of statutory power of sale by the chargor in respect of all that property known as L.R. No. 4275/13 (I.R. 74510), being the Riverside Office Block (the "Suit Property").
7. Pendency of Civil Appeal NO. E1075 OF 2025 arising from the above suit in which the Court of Appeal determined the application for an injunction to stop the bank from exercising its statutory power of sale and allowed the bank to sell the property.
8. The applicant did not disclose in the Notice of Motion dated 19/03/2026 nor the Supporting Affidavit of 19/03/2026 these facts which are relevant to this case and relate to the subject matter directly.
9. Of pointed significance in the Ruling of Court of Appeal dated 13/03/2026 being an application for injunction pending hearing and determination of an appeal from the Ruling of the High Court at Nairobi (Dr. F. Mugambi, J) delivered on 28th November 2025 is reproduced below: -
“… 38. It is not in dispute that the respondent is a tier 1 bank, and in the event the appeal succeeds, it is capable of compensating the applicant for any loss that it may suffer as a result of sale of the suit property. The outstanding loan balance is in excess of Kshs 1.3 billion, a colossal amount of money, and the loan continues to accrue interest. If realization of the security id delayed any further, the outstanding sum may outstrip the value of the suit property, which will not be in the interest of any of the parties. If, after hearing the appeal, it turns out that the respondent ought not, in the circumstances, to have exercised its statutory power of sale, the value of the suit property is capable of being determined and the respondent will make good that loss.
39. For these reasons, we are satisfied that the appeal, if successful, shall not be rendered nugatory. As the applicant has not satisfied both limbs under rule 5(2)(b) of this Court’s Rules, we hereby dismiss this application with costs to the respondent. “
10. The applicant has argued that, although they were cited as interested parties in the suit before the High Court and the appeal thereto to the Court of Appeal, they were never served with summons or pleadings whatsoever. This argument immediately invites the question; whether such plea should not be made in the proceedings before the High Court or in the Court of Appeal in which orders directly affecting the charged property were made and pursuant to which the public auction subject of the proceedings before me is anchored. The arguments appear to be based on lack of service and being condemned unheard which may invoke action ex debito justitiae but in the correct forum.
11. The applicant has chosen to make the arguments in these proceedings. The dilemmas that approach create include; how this court will deal with the CoA ruling without entering into a real possibility of embarrassment or over-reach? The kind of distribution or extension of jurisdictional tentacles of this court being proposed by the applicant is problematic. This may not be the case if the applicant’s intervention was in the suit or appeal where it is cited as an interested party and adverse orders were made.
12. I do note that the primary suit has not concluded and has been fixed for pre-trial on 11.5.26 before Mugambi J.
13. Accordingly, it may be inappropriate to extend the interim orders herein in light of the revelations made by advocate Ondieki.
14. I take this view fully aware that these proceedings allege lack of statutory notices which argument could be made in the fora I have stated to bolster their quest to set aside the adverse orders.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 15th day April, 2026
--------
F. Gikonyo M
Judge
In the presence of: -
Kimani for Plaintiff
Ondieki for defendant
Ochiel for 1st Interested Party
Chege for 2nd Interested Party
CA – Ivan/Aggrey