Introduction and Background
1. What is before the court for determination is the Plaintiff’s Notice of Motion dated 26 th September 2025 seeking to attach the Defendants’ assets and prevent them from selling, transferring, or dissipating the said assets, specifically, Apartment Nos. A7-107, B3-203, and B4-204 at Suswa Heights, Upper Parklands, Nairobi. It further seeks to prevent the 2 nd , 3 rd , 4 th , and 5 th Defendants who hold both Kenyan and Indian passports from fleeing Kenya to avoid liability as the Plaintiff claims they are at an advanced stage of relocation and as such, that they should deposit their passports in court.
2. The application is supported by grounds on its face and the affidavits of the Plaintiff’s Principal Officer, Deepal Rameshchandra Gudka sworn on 26 th September 2025 and 19 th October 2025. It is opposed by the Defendants through the replying affidavit sworn by the 2 nd Defendant on 10 th October 2025. The application was canvassed by way of written submissions that I have considered together with the pleadings and I will be making relevant references to the same in my analysis and determination below.
Analysis and Determination
3. From the parties’ submissions, the court is being called to determine whether the Plaintiff has satisfied the conditions for the issuance of an order for attachment of the Defendants’ properties before judgment and whether the orders sought in the Plaintiff’s application can issue. The application and the law on grant of interlocutory injunctions are grounded and set out under Order 40 Rule 1 (a) and (b) of the Civil Procedure Rules as follows:
“Where in any suit it is proved by affidavit or otherwise –
(a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in execution of any decree that may be passed against the defendant in the suit ;
the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”
4. The parties agree that the threshold for the grant of freezing order are enunciated in GOODE ON COMMERCIAL LAW , 4 th Ed. at pg. 1287 to be as follows:
“The grant of a freezing injunction is governed by principles quite distinct from those laid down for ordinary interim injunctions ….Before granting a freezing injunction the court will usually require to be satisfied that;
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 of the administration of requests for further information to assist the claimant in ascertaining the location of the defendant’s assets
5. This court (Okwany J.,) in Jayden Limited v Bradley Limited [2020] KEHC 5384 (KLR) accepted that an “arguable case” has been assigned a meaning within the context of freezing order and has been adopted with approval by many courts in Kenya to be “ One which is more than barely capable of serious argument, but not necessarily one which the judge consider would have a better than 50 per cent chance of success .” The Plaintiff’s case is that in 2015 and 2018, the Defendants asked it to guarantee loans totaling Kshs. 50 million from Prime Bank Limited for their company's working capital. The Plaintiff agreed, using its property, L.R. No. 209/4375, Nairobi, as collateral and in exchange, the Defendants issued a joint and several undertaking to fully indemnify the Plaintiff against any claim by the Bank. The 1 st Defendant defaulted on the loan and the Plaintiff alleges the directors diverted the loan funds to another company instead of using them for the stated business purpose. The Bank issued statutory notices and threatened to auction the Plaintiff's property and to avoid a forced sale, the Plaintiff sold the property privately for Kshs. 72,000,000.00 to pay off the outstanding loan which had grown to over Kshs. 54 million.
6. The Plaintiff avers that if the Court does not act and issue the orders sought, the Defendants will sell their only known apartments and flee Kenya, leaving the Plaintiff with a paper judgment it cannot enforce, that the Defendants broke their promise to indemnify the Plaintiff, who lost its property because of their default and alleged misrepresentation and that the Defendants are preparing to relocate from Kenya, and bringing them back would be expensive with no guaranteed success.
7. In response, the Defendants depone that 2 nd & 4 th Defendants resigned as directors of the 1 st Defendant on 13 th April 2021 which is nearly one year before the statutory notice was issued 7 th February 2022 and that they cannot be held liable for corporate acts that occurred after they left the company. They aver that the Plaintiff has not shown any personal undertaking, guarantee, or fraudulent conduct by them, that the 1 st Defendant is a separate legal entity and the Plaintiff has not pleaded any specific facts showing the company was a sham or used to perpetrate fraud.
8. The Defendants state that the corporate guarantees to the Bank were executed by the Plaintiff's own director and not by any of the Defendants in their personal capacities. Further, that the subject Apartments were owned by an independent third party which sold these apartments to MKS by way of three separate sale agreements all dated 22 nd January 2022. They accuse the Plaintiff of trying to attach property belonging to a non-party, which violates the owner's constitutional rights under Article 40 of the Constitution
9. The Defendants contend that they are Kenyan citizens who have lived, worked, and raised families in Kenya for nearly three decades and the allegation that they are at an advanced stage of relocation is speculative and unsupported by evidence.They state that they have engaged advocates and are actively defending the suit. They also claim that the 4 th Defendant is blind and the 2 nd Defendant suffers from a cortisol production disorder requiring periodic specialized treatment abroad and confiscating their passports would endanger their health and violate Article 43(1)(a) of the Constitution on their right to health.
10. The 2 nd Defendant claims that the tripartite arrangement was actually a settlement of a pre-existing debt and that in 1999, the Plaintiff's late director borrowed Kshs. 12 million from him. That by 2015, they agreed to formalize the settlement in that the Plaintiff would provide its property as security for a bank loan to the 1 st Defendant and in return, the Plaintiff's Kshs. 12 million debt plus 8% interest would be discharged. They also point out that the Plaintiff's own board resolution of 5 th June 5, 2015 states that the charging was "of Commercial Benefits to Romatex Properties Limited by virtue of its association to Nirma Kenya Limited" and not as a creditor expecting repayment. Therefore, no direct debtor-creditor relationship existed between the Plaintiff and the 1 st Defendant and that the Plaintiff's exposure was the agreed price for the commercial benefit it received.
11. The Defendants aver that the late Plaintiff's managing director cooperated in the private sale of the property in May 2023 and never filed any suit or even sent a demand letter to the Defendants before his death in May 2025. They state that the present suit is being pursued by his successors, who allegedly have no knowledge of the original family/business arrangement. As such, the Defendants urge the court to dismiss the application with costs and strike out the names of the 2 nd - 5 th Defendants from the suit entirely.
12. I have gone through the pleadings and the submissions. On whether the Plaintiff has an arguable case, it is uncontroverted that the Plaintiff charged its property L.R. No. 209/4375 as security for a loan to the 1 st Defendant. The Plaintiff acted as a guarantor to the loan facilities which were not repaid, the Bank exercised its statutory power of sale, and the Plaintiff eventually sold the property to offset the loan and the Plaintiff now seeks indemnification from the Defendants.
13. Whereas the Defendants claim the 2 nd and 4 th Defendants resigned as directors in April 2021, the Plaintiff has annexed personal guarantee agreements ( DRG-1 ) in its further deposition executed by the 2 nd - 5 th Defendants in their personal capacities. A personal guarantee binds the guarantor regardless of directorship status and resignation from a company does not cancel a personal guarantee.
14. This position has been affirmed by the Court of Appeal which has always maintained that personal guarantees create a personal, binding liability on the guarantor to pay on demand and that a lender is free to pursue the guarantor directly if the principal borrower defaults, confirming the co-extensive and continuing nature of the liability (see Kenindia Assurance Company Limied v First National Finance Bank Limited [2008] KECA 91 (KLR) ]. Therefore, the Defendants' argument that they are not liable because they resigned is therefore legally untenable as the personal guarantees continue to exist until express revocation or full repayment. Therefore, it is my finding that the Plaintiff has a good and arguable case against the 2 nd - 5 th Defendants in their personal capacities as co-guarantors.
15. As this court’s jurisdiction is admitted, I will then move to whether the Defendants have assets with the court’s jurisdiction and whether they are at risk of being dissipated. The Defendants stated that the subject Apartments do not belong to them as they have been sold to a third-party company. They annexed three sale agreements dated 22 nd January 2022 between SDL as the vendor and MKS as the purchaser of the Apartments for a sum of Kshs. 16,000,000.00 which each Agreement requiring a deposit of Kshs. 9,500,000.00 on execution and a balance of Kshs. 6,500,000.00 on completion. The Plaintiff rebutted by annexing a CR-12 dated 15 th October 2025 showing that the 2 nd and 4 th Defendants are directors and owners of the said SDL, bank statements showing that on 27 th September 2018, the entire Kshs. 20,000,000.00 second loan was transferred to SDL on the same day it was credited to the 1 st Defendant and pictorial evidence suggesting the Apartments are still occupied by the Defendants or their family members. The Plaintiff further annexed the Recall Notice of the Facilities by the Bank which was issued on 29 th December 2021 whereas the sale agreements are dated 22 nd January 2022 , barely one month later. I am in agreement with the Plaintiff’s apprehension and submission that this strongly suggests a deliberate attempt to dissipate assets after a demand was made.
16. I am also in further agreement that the Defendants have not produced completion documents for the sales or evidence that the balance of Kshs. 6,500,000.00 per Apartment was or was not paid an further, there are mot Titles the name of the alleged purchaser MKS. What comes out clearly to the court at this point is that the Apartments may be owned by SDL but this company is just but a proxy of the Defendants and the court can only presume that the assets or their value remain within the Defendants' control.
17. I find that there is real risk of dissipation owing to the Defendants’ conduct of selling the Apartments within one month of receiving the Recall Notice, the 2 nd and 4 th Defendants allegedly resigning as directors of the 1 st Defendant in April 2021 which was one year before the statutory notice and suggests a pattern of distancing themselves from liability. The Plaintiff also alleged that the Defendants hold dual Kenyan and Indian passports, creating a real risk of leaving the jurisdiction and the 2 nd Defendant admitted needing periodic specialized medical treatment abroad which, while legitimate, also demonstrates the ability and willingness to travel internationally. The Defendants' argument that they have deep ties to Kenya having lived and worked for 30 years while noted, does not eliminate the risk. People with deep ties can still leave especially when facing a potential multimillion-shilling judgment. I therefore find the Plaintiff has demonstrated a real and imminent risk of dissipation and absconding as the timing of the sale and conduct of the Defendants is highly suspicious.
18. It is also my position that the balance of convenience favours the Plaintiff because if the injunction is denied, it stands to lose the only known assets and the judgment becomes a paper decree whereas the inconvenience to be suffered by the Defendants is not disposing of assets. The Plaintiff cannot recover if Defendants flee or assets are dissipated whereas the Defendants can be compensated by costs if it is later on found that the injunction was wrongly granted. I also agree that public interest and policy prevents fraud and ensures court judgments are enforceable and while I can also agree that the Defendants’ property rights could be affected, the said properties appear to be beneficially owned by Defendants through SDL
19. I also note that the Defendants did not address the liquidity of the 1 st Defendant, tender evidence that the 2 nd –5 th Defendants have any other assets capable of satisfying a judgment and they did not offer any alternative properties that could be liquidated. This silence strongly supports the Plaintiff's contention that the Apartments or their sale proceeds are the only known assets available to satisfy a judgment.
20. On the passport deposit order, having gone through the parties’ positions on the same and balancing their rights, I am inclined to go with the Plaintiff’s compromise that the passports can be deposited, but the court can release them for genuine medical treatment upon application. On the 1999 Kshs. 12,000,000.00 debt allegation and that the 2015 Charge was a settlement of that debt, I note that the Plaintiff has effectively rebutted by stating that there is no board resolution authorizing the Plaintiff to borrow this sum, there is no transfer confirmation, source of funds, or disbursement evidence and there is no loan agreement or contract setting out terms including the alleged 8% interest. Further, the 5 th June 2015 board resolution mentions nothing about any debt to the 2 nd Defendant only "… commercial benefit to Romatex Properties Limited by virtue of its association to Nirma Kenya Limited. " In any event, this defense is not credible at the interlocutory stage as the Defendant bears the burden of proving this alleged debt at trial. For purposes of the freezing order, the Plaintiff's prima facie case stands.
21. In summary, I find that the Plaintiff has presented a compelling prima facie case that the Defendants induced it to guarantee a loan, defaulted, and then took steps to hide assets through SDL and prepare to leave the jurisdiction. The 1999 debt allegation appears to be an afterthought raised to avoid liability.
Conclusion and Disposition
22. In the foregoing, I find that the Plaintiff’s application dated 26 th September 2025 has merit and it is allowed in the following terms:
1) An Order be and is hereby issued attaching the Defendants' properties comprising in the property known as L.R No. 209/8864, and its plant and machinery wheresoever located in the Republic of Kenya, and an injunction be and hereby issued restraining the Defendants, whether by their agents, employees, servants, nominees, proxies, associates, assigns, and through any party whatsoever acting at their behest, from doing the following acts or any of them, that is to say advertising for sale, selling, charging, leasing, transferring, disposing of, alienating, or in any other manner whatsoever dealing with the property known as Apartment No. A7-107, Apartment No. B3-203, and Apartment No. B4-204, all located at Suswa Heights along General Suswa Road, Upper Parklands, Nairobi pending the hearing and determination of the suit or until further orders of this Court.
2) An Order be and is hereby issued directing the 2 nd , 3 rd , 4 th and 5 th Defendants to unconditionally deposit both their Kenyan Passports and Indian Passports with the Deputy Registrar of this Court within three(3) days of service of this Order, pending the hearing and determination of the suit filed herewith, or until further orders of the Court.
3) The 2 nd , 3 rd , 4 th and 5 th Defendants are hereby prohibited from travelling outside the jurisdiction of this Court during the pendency of the present proceedings without first obtaining leave of the Court upon application on notice to the Plaintiff
4) Costs of this application shall be borne by the Defendants
DATED SIGNED AND DELIVERED virtually this 8 TH DAY OF MAY 2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Mukuha holding brief for Mr. Bwire for the Plaintiff/Applicant
2. Ms. Nabayi for the Defendant/Respondent
3. Amos- Court Assistant
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1. What is before the court for determination is the Plaintiff’s Notice of Motion dated 26 th September 2025 seeking to attach the Defendants’ assets and prevent them from selling, transferring, or dissipating the said assets, specifically, Apartment Nos. A7-107, B3-203, and B4-204 at Suswa Heights, Upper Parklands, Nairobi. It further seeks to prevent the 2 nd , 3 rd , 4 th , and 5 th Defendants who hold both Kenyan and Indian passports from fleeing Kenya to avoid liability as the Plaintiff claims they are at an advanced stage of relocation and as such, that they should deposit their passports in court.
2. The application is supported by grounds on its face and the affidavits of the Plaintiff’s Principal Officer, Deepal Rameshchandra Gudka sworn on 26 th September 2025 and 19 th October 2025. It is opposed by the Defendants through the replying affidavit sworn by the 2 nd Defendant on 10 th October 2025. The application was canvassed by way of written submissions that I have considered together with the pleadings and I will be making relevant references to the same in my analysis and determination below.
Analysis and Determination
3. From the parties’ submissions, the court is being called to determine whether the Plaintiff has satisfied the conditions for the issuance of an order for attachment of the Defendants’ properties before judgment and whether the orders sought in the Plaintiff’s application can issue. The application and the law on grant of interlocutory injunctions are grounded and set out under Order 40 Rule 1 (a) and (b) of the Civil Procedure Rules as follows:
“Where in any suit it is proved by affidavit or otherwise –
(a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in execution of any decree that may be passed against the defendant in the suit ;
the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”
4. The parties agree that the threshold for the grant of freezing order are enunciated in GOODE ON COMMERCIAL LAW , 4 th Ed. at pg. 1287 to be as follows:
“The grant of a freezing injunction is governed by principles quite distinct from those laid down for ordinary interim injunctions ….Before granting a freezing injunction the court will usually require to be satisfied that;
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 of the administration of requests for further information to assist the claimant in ascertaining the location of the defendant’s assets
5. This court (Okwany J.,) in Jayden Limited v Bradley Limited [2020] KEHC 5384 (KLR) accepted that an “arguable case” has been assigned a meaning within the context of freezing order and has been adopted with approval by many courts in Kenya to be “ One which is more than barely capable of serious argument, but not necessarily one which the judge consider would have a better than 50 per cent chance of success .” The Plaintiff’s case is that in 2015 and 2018, the Defendants asked it to guarantee loans totaling Kshs. 50 million from Prime Bank Limited for their company's working capital. The Plaintiff agreed, using its property, L.R. No. 209/4375, Nairobi, as collateral and in exchange, the Defendants issued a joint and several undertaking to fully indemnify the Plaintiff against any claim by the Bank. The 1 st Defendant defaulted on the loan and the Plaintiff alleges the directors diverted the loan funds to another company instead of using them for the stated business purpose. The Bank issued statutory notices and threatened to auction the Plaintiff's property and to avoid a forced sale, the Plaintiff sold the property privately for Kshs. 72,000,000.00 to pay off the outstanding loan which had grown to over Kshs. 54 million.
6. The Plaintiff avers that if the Court does not act and issue the orders sought, the Defendants will sell their only known apartments and flee Kenya, leaving the Plaintiff with a paper judgment it cannot enforce, that the Defendants broke their promise to indemnify the Plaintiff, who lost its property because of their default and alleged misrepresentation and that the Defendants are preparing to relocate from Kenya, and bringing them back would be expensive with no guaranteed success.
7. In response, the Defendants depone that 2 nd & 4 th Defendants resigned as directors of the 1 st Defendant on 13 th April 2021 which is nearly one year before the statutory notice was issued 7 th February 2022 and that they cannot be held liable for corporate acts that occurred after they left the company. They aver that the Plaintiff has not shown any personal undertaking, guarantee, or fraudulent conduct by them, that the 1 st Defendant is a separate legal entity and the Plaintiff has not pleaded any specific facts showing the company was a sham or used to perpetrate fraud.
8. The Defendants state that the corporate guarantees to the Bank were executed by the Plaintiff's own director and not by any of the Defendants in their personal capacities. Further, that the subject Apartments were owned by an independent third party which sold these apartments to MKS by way of three separate sale agreements all dated 22 nd January 2022. They accuse the Plaintiff of trying to attach property belonging to a non-party, which violates the owner's constitutional rights under Article 40 of the Constitution
9. The Defendants contend that they are Kenyan citizens who have lived, worked, and raised families in Kenya for nearly three decades and the allegation that they are at an advanced stage of relocation is speculative and unsupported by evidence.They state that they have engaged advocates and are actively defending the suit. They also claim that the 4 th Defendant is blind and the 2 nd Defendant suffers from a cortisol production disorder requiring periodic specialized treatment abroad and confiscating their passports would endanger their health and violate Article 43(1)(a) of the Constitution on their right to health.
10. The 2 nd Defendant claims that the tripartite arrangement was actually a settlement of a pre-existing debt and that in 1999, the Plaintiff's late director borrowed Kshs. 12 million from him. That by 2015, they agreed to formalize the settlement in that the Plaintiff would provide its property as security for a bank loan to the 1 st Defendant and in return, the Plaintiff's Kshs. 12 million debt plus 8% interest would be discharged. They also point out that the Plaintiff's own board resolution of 5 th June 5, 2015 states that the charging was "of Commercial Benefits to Romatex Properties Limited by virtue of its association to Nirma Kenya Limited" and not as a creditor expecting repayment. Therefore, no direct debtor-creditor relationship existed between the Plaintiff and the 1 st Defendant and that the Plaintiff's exposure was the agreed price for the commercial benefit it received.
11. The Defendants aver that the late Plaintiff's managing director cooperated in the private sale of the property in May 2023 and never filed any suit or even sent a demand letter to the Defendants before his death in May 2025. They state that the present suit is being pursued by his successors, who allegedly have no knowledge of the original family/business arrangement. As such, the Defendants urge the court to dismiss the application with costs and strike out the names of the 2 nd - 5 th Defendants from the suit entirely.
12. I have gone through the pleadings and the submissions. On whether the Plaintiff has an arguable case, it is uncontroverted that the Plaintiff charged its property L.R. No. 209/4375 as security for a loan to the 1 st Defendant. The Plaintiff acted as a guarantor to the loan facilities which were not repaid, the Bank exercised its statutory power of sale, and the Plaintiff eventually sold the property to offset the loan and the Plaintiff now seeks indemnification from the Defendants.
13. Whereas the Defendants claim the 2 nd and 4 th Defendants resigned as directors in April 2021, the Plaintiff has annexed personal guarantee agreements ( DRG-1 ) in its further deposition executed by the 2 nd - 5 th Defendants in their personal capacities. A personal guarantee binds the guarantor regardless of directorship status and resignation from a company does not cancel a personal guarantee.
14. This position has been affirmed by the Court of Appeal which has always maintained that personal guarantees create a personal, binding liability on the guarantor to pay on demand and that a lender is free to pursue the guarantor directly if the principal borrower defaults, confirming the co-extensive and continuing nature of the liability (see Kenindia Assurance Company Limied v First National Finance Bank Limited [2008] KECA 91 (KLR) ]. Therefore, the Defendants' argument that they are not liable because they resigned is therefore legally untenable as the personal guarantees continue to exist until express revocation or full repayment. Therefore, it is my finding that the Plaintiff has a good and arguable case against the 2 nd - 5 th Defendants in their personal capacities as co-guarantors.
15. As this court’s jurisdiction is admitted, I will then move to whether the Defendants have assets with the court’s jurisdiction and whether they are at risk of being dissipated. The Defendants stated that the subject Apartments do not belong to them as they have been sold to a third-party company. They annexed three sale agreements dated 22 nd January 2022 between SDL as the vendor and MKS as the purchaser of the Apartments for a sum of Kshs. 16,000,000.00 which each Agreement requiring a deposit of Kshs. 9,500,000.00 on execution and a balance of Kshs. 6,500,000.00 on completion. The Plaintiff rebutted by annexing a CR-12 dated 15 th October 2025 showing that the 2 nd and 4 th Defendants are directors and owners of the said SDL, bank statements showing that on 27 th September 2018, the entire Kshs. 20,000,000.00 second loan was transferred to SDL on the same day it was credited to the 1 st Defendant and pictorial evidence suggesting the Apartments are still occupied by the Defendants or their family members. The Plaintiff further annexed the Recall Notice of the Facilities by the Bank which was issued on 29 th December 2021 whereas the sale agreements are dated 22 nd January 2022 , barely one month later. I am in agreement with the Plaintiff’s apprehension and submission that this strongly suggests a deliberate attempt to dissipate assets after a demand was made.
16. I am also in further agreement that the Defendants have not produced completion documents for the sales or evidence that the balance of Kshs. 6,500,000.00 per Apartment was or was not paid an further, there are mot Titles the name of the alleged purchaser MKS. What comes out clearly to the court at this point is that the Apartments may be owned by SDL but this company is just but a proxy of the Defendants and the court can only presume that the assets or their value remain within the Defendants' control.
17. I find that there is real risk of dissipation owing to the Defendants’ conduct of selling the Apartments within one month of receiving the Recall Notice, the 2 nd and 4 th Defendants allegedly resigning as directors of the 1 st Defendant in April 2021 which was one year before the statutory notice and suggests a pattern of distancing themselves from liability. The Plaintiff also alleged that the Defendants hold dual Kenyan and Indian passports, creating a real risk of leaving the jurisdiction and the 2 nd Defendant admitted needing periodic specialized medical treatment abroad which, while legitimate, also demonstrates the ability and willingness to travel internationally. The Defendants' argument that they have deep ties to Kenya having lived and worked for 30 years while noted, does not eliminate the risk. People with deep ties can still leave especially when facing a potential multimillion-shilling judgment. I therefore find the Plaintiff has demonstrated a real and imminent risk of dissipation and absconding as the timing of the sale and conduct of the Defendants is highly suspicious.
18. It is also my position that the balance of convenience favours the Plaintiff because if the injunction is denied, it stands to lose the only known assets and the judgment becomes a paper decree whereas the inconvenience to be suffered by the Defendants is not disposing of assets. The Plaintiff cannot recover if Defendants flee or assets are dissipated whereas the Defendants can be compensated by costs if it is later on found that the injunction was wrongly granted. I also agree that public interest and policy prevents fraud and ensures court judgments are enforceable and while I can also agree that the Defendants’ property rights could be affected, the said properties appear to be beneficially owned by Defendants through SDL
19. I also note that the Defendants did not address the liquidity of the 1 st Defendant, tender evidence that the 2 nd –5 th Defendants have any other assets capable of satisfying a judgment and they did not offer any alternative properties that could be liquidated. This silence strongly supports the Plaintiff's contention that the Apartments or their sale proceeds are the only known assets available to satisfy a judgment.
20. On the passport deposit order, having gone through the parties’ positions on the same and balancing their rights, I am inclined to go with the Plaintiff’s compromise that the passports can be deposited, but the court can release them for genuine medical treatment upon application. On the 1999 Kshs. 12,000,000.00 debt allegation and that the 2015 Charge was a settlement of that debt, I note that the Plaintiff has effectively rebutted by stating that there is no board resolution authorizing the Plaintiff to borrow this sum, there is no transfer confirmation, source of funds, or disbursement evidence and there is no loan agreement or contract setting out terms including the alleged 8% interest. Further, the 5 th June 2015 board resolution mentions nothing about any debt to the 2 nd Defendant only "… commercial benefit to Romatex Properties Limited by virtue of its association to Nirma Kenya Limited. " In any event, this defense is not credible at the interlocutory stage as the Defendant bears the burden of proving this alleged debt at trial. For purposes of the freezing order, the Plaintiff's prima facie case stands.
21. In summary, I find that the Plaintiff has presented a compelling prima facie case that the Defendants induced it to guarantee a loan, defaulted, and then took steps to hide assets through SDL and prepare to leave the jurisdiction. The 1999 debt allegation appears to be an afterthought raised to avoid liability.
Conclusion and Disposition
22. In the foregoing, I find that the Plaintiff’s application dated 26 th September 2025 has merit and it is allowed in the following terms:
1) An Order be and is hereby issued attaching the Defendants' properties comprising in the property known as L.R No. 209/8864, and its plant and machinery wheresoever located in the Republic of Kenya, and an injunction be and hereby issued restraining the Defendants, whether by their agents, employees, servants, nominees, proxies, associates, assigns, and through any party whatsoever acting at their behest, from doing the following acts or any of them, that is to say advertising for sale, selling, charging, leasing, transferring, disposing of, alienating, or in any other manner whatsoever dealing with the property known as Apartment No. A7-107, Apartment No. B3-203, and Apartment No. B4-204, all located at Suswa Heights along General Suswa Road, Upper Parklands, Nairobi pending the hearing and determination of the suit or until further orders of this Court.
2) An Order be and is hereby issued directing the 2 nd , 3 rd , 4 th and 5 th Defendants to unconditionally deposit both their Kenyan Passports and Indian Passports with the Deputy Registrar of this Court within three(3) days of service of this Order, pending the hearing and determination of the suit filed herewith, or until further orders of the Court.
3) The 2 nd , 3 rd , 4 th and 5 th Defendants are hereby prohibited from travelling outside the jurisdiction of this Court during the pendency of the present proceedings without first obtaining leave of the Court upon application on notice to the Plaintiff
4) Costs of this application shall be borne by the Defendants
DATED SIGNED AND DELIVERED virtually this 8 TH DAY OF MAY 2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Mukuha holding brief for Mr. Bwire for the Plaintiff/Applicant
2. Ms. Nabayi for the Defendant/Respondent
3. Amos- Court Assistant
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