sucham investment Limited VS Office of the Land Registrar AND KENYA UNION OF DOMESTIC, HOTELS, EDUCATION INSTITUTIONS AND HOSPITAL WORKERS AND 3 Others

I.   Introduction

1.   This is a rather convoluted matter. The Honourable Court was called upon to make a determination unto three ( 3 ) Notice of Motion Applications dated 28th January, 2026, 19th February 2026, and 24th April, 2026 respectively filed by the Plaintiff/Applicant, Sucham Investments Limited. Equally before the Court was a Preliminary Objection dated 10th March, 2026 filed by the 1st and 2nd Defendants/Respondents, Genesis Investments Limited and The First Avenue Investments LLC, primarily challenging the competence of the Plaintiff’s applications and the jurisdiction of this Honourable Court.

2.   In addition, the Court is seized of replies as follows:-

a)   the Replying Affidavit sworn on 3rd June, 2026 by Peter Kinyua, the 5th Defendant/Respondent and principal of Kinyua & Company Auctioneers, responding to the Notice of Motion application dated 28th January, 2026, 19th February, 2026, and 24th April, 2026, reiterating that the execution process was conducted pursuant to valid warrants of attachment and sale issued in ELRC Cause No. E032 of 2023, and that the Plaintiff fully participated in the process culminating in the auction of 7th October, 2025.

b)   The 1st and 2nd Defendants also responded to the Notice of Motion application dated 24th April, 2026 through a Replying Affidavit sworn in May, 2026.

3.   Upon service of the Plaintiff’s applications, the Defendants opposed it through Grounds of Opposition, affidavits, and written submissions.

4.   Therefore, this ruling addresses the merits of the afore – stated Notice of Motion Applications by the Plaintiffs, the Preliminary Objection raised by the 1st and 2nd Defendants, and the Replying Affidavit sworn by the 5th Defendant, guided by the applicable constitutional provisions, statutory framework, and judicial precedents. For clarity sake, it shall be dealing with each of these pleadings separately and distinctly but simultaneously in this Omnibus Ruling hereof.

II.   The Notice of Motion application dated 28th January, 2026

5.   The Application was brought under the provisions of Articles 40, 47, and 50 of the Constitution of Kenya, 2010; Sections 1A, 1B & 3A of the Civil Procedure Act, Cap. 21; Order 40 Rules 1, 2, 3 & 10 of the Civil Procedure Rules, 2010; Sections 14, 68, 76, 79 & 80 of the Land Registration Act No. 3 of 2012; and all other enabling provisions of the law.

6.   The Applicant sought the following orders:-

a.   Spent.

b.   Spent.

c.   Spent.

d.   Pending the hearing and determination of this suit, a temporary injunction be issued restraining the 1st and 2nd Defendants, their agents, servants, or any persons claiming under them from entering upon, occupying, remaining on, managing, operating, leasing, charging, selling, transferring to 3rd parties, alienating, or otherwise dealing with the properties known as Title Numbers C.R. 17508 and C.R.18325.

e.   Pending the hearing and determination of this suit, a temporary injunction be and is hereby issued restraining the 3rd and 4th Defendants from registering, endorsing, cancelling, or giving effect to any transfer, charge, lease, or other disposition in respect of Title Numbers C.R. 17508 and C.R. 18325.

f.   This Honourable Court be pleased to issue an order of inhibition under Section 68 of the Land Registration Act, inhibiting all dealings with Title Numbers C.R.17508 and C.R. 18325 pending the hearing and determination of this suit.

g.   Pending the hearing and determination of this suit, a mandatory injunction do issue compelling the 1st and 2nd Defendants to deliver up vacant possession of the Suit Property and the business known as Amani Tiwi Beach Resort to the Plaintiff, or in the alternative, to deposit all income generated therefrom since the date of illegal takeover into Court or into a joint interest-earning account in the names of the Advocates on record for the parties, as this Honourable Court may direct.

h.   The Officer Commanding Police Station (OCS) Tiwi Police Station and/or the Kwale County Police Commander, be directed to enforce the orders of this Court and ensure compliance, and to prevent any breach of peace.

i.   This Honourable Court be pleased to issue such further, consequential, or ancillary orders as may be necessary to give effect to the foregoing and to preserve the substratum of the suit.

j.   The costs of this Application be provided for.

7.   The application by the Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 26 Paragraphed annexed affidavit of CHARANJIT SINGH HAYER, the Director of the Plaintiff/ Applicant herein. The Affiant averred that:

a.   The Affiant averred that he referred to the exhibit marked as “CSH ‑ 1”, paginated consecutively and annexed to the affidavit.

b.   The facts stated therein were derived from his personal knowledge as a Director actively involved in the management of the Plaintiff/Applicant’s affairs, and from a review of the company’s records.

Proprietary interest and nature of the property

c.   The Plaintiff/Applicant was, and had at all material times been, the absolute and indefeasible registered proprietor of the leasehold interests comprised in Title Number C.R. 17508 (L.R. No. 13443) and Title Number C.R. 18325 (L.R. No. 13442), situate in the County of Kwale, having lawfully acquired the same on or about 31st December, 2003 through duly registered transfers under the Land Registration Act. Copies of the titles were annexed at pages 2 to 6 and 7 to 12 respectively.

d.   The said parcels comprised two adjoining beachfront parcels—Land Reference Nos. 13442 (4.042 Ha / 9.988 acres) and 13443 (4.424 Ha / 10.932 acres)—totalling approximately 8.466 Ha (20.92 acres) in Tiwi Beach, Kwale County, Kenya, upon which stood a fully developed hospitality establishment known as Amani Tiwi Beach Resort, a unique income‑generating commercial asset with substantial goodwill and brand value. A copy of the Business Name Registration Certificate for Amani Tiwi Beach Resort dated 14th June 2004 was annexed at page 13.

e.   Amani Tiwi Beach Resort was located off Likoni ‑ Ukunda Road, about 4 km from the main road, 15 km from Ukunda Township, and featured a 230‑meter beach frontage at coordinates 4° 15.112’S, 39° 35.923’E.

Key Property Details

a)   Description and Improvements: The Affiant averred that the site consisted of sandy, near‑even‑graded beach parcels, developed as a 209‑bed beach resort. Structures included:

1.   Hotel rooms, administration block, gym and spa, squash and salon block, kitchen and restaurants, main bar, 2 mini bars, conference facilities, maintenance workshop, staff changing room and dining hall.

2.   Amenities: Three interconnecting swimming pools, tennis court, kids’ club.

3.   Total built-up area: Approximately 19,241 sq.m (206,913 sq.ft.)

b)   Tenure: Leasehold interest with an unexpired term of about 57 years.

c)   Tenancies: Owner-occupied under the business name Amani Tiwi Beach Resort.

d)   Condition and Services: The property is in fair condition, with access to mains electricity, water (supplemented by a borehole), sewerage via septic tanks, and good road access.

f.   The area benefited from its proximity to Diani Airport and was part of a growing hospitality sector.

 

 

Background to the dispute and ELRC Proceedings

g.   The Plaintiff/Applicant was the Respondent in “the Employment and Labour Relations Court Cause No. E032 of 2023, Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers (KUDHEIHA) – Versus - Sucham Investments Limited t/a Amani Tiwi Beach Resort”, in which the Claimant sought to enforce a decree of approximately a sum of Kenya Shillings Thirty Two Million Eight Seventy Two Thousand Twenty Four and thirty Cents (Kshs. 32,872,024.32/=).

h.   On 8th August,  2025, and with the consent of all parties, the Honourable Employment and Labour Relations Court at Mombasa issued Prohibitory Orders expressly barring any sale, transfer, charge, or other disposition of L.R. Nos. 13442 and 13443.

i.   The Affiant reiterated that the said Prohibitory Orders were endorsed with a penal notice and duly registered against the titles on or about 5th September, 2025, thereby imposing a statutory embargo on all dealings pursuant to Section 68 of the Land Registration Act, No. 2012. A copy of the ELRC Order dated 8th August,  2025 was annexed at page 14.

j.   A further order made on 30th September, 2025, the Claimant was authorised to sell land parcels L.R. No. 13442 and L.R. No. 13443, registered in the name of Sucham Investments Limited, through Kinyua & Company Auctioneers, to recover a sum of Kenya Shillings Thirty Two Million Eight Seventy Two Thousand Twenty Four and thirty Cents (Kshs. 32,872,024.32/=) plus attendant costs, with any surplus to be remitted to the Respondent. A copy of the Order dated 30th September, 2025 was annexed at pages 15 to 16.

k.   The Affiant reiterated that the prohibitory orders were never lifted.

Unlawful execution and sale by private treaty

l.   The Affiant deponed that notwithstanding the subsisting Prohibitory Orders, the 6th Defendant, Kinyua & Company Auctioneers Limited, under ostensible instructions of the 5th Defendant, purported to attach, proclaim, and sell the Suit Properties in blatant contempt of court.

m.   At no time was the Plaintiff/Applicant served with any proclamation of attachment, notification of sale, forced sale valuation, or public advertisement.

n.   The purported sale was conducted secretly by private treaty, without public auction, competitive bidding, or transparency, rendering the execution process illegal, fraudulent, and void.

The transfer instrument dated 12th November, 2025 and registered on 18th November, 2025 for 13422 is on pages 17 to 24, the memorandum of sale for both properties dated 17th October 2025 is on page 25 to 41, The Auctioneers CR12 at page 42, the Transferee [Genesis] CR12 at page 47 to 48, the Transferee certificate of incorporation on 27th October, 2025 on page 49, a second memorandum of sale dated 7th October 2025 for 13422 is on pages 55 to 56, Transfer for 13443 dated 12th November, 2025 is on pages 59 to 66, Memorandum of sale for 13443 dated 17th October, 2025 is on pages 67 to 83, A second memorandum dated 7th October, 2025 for13433 is on pages 97 and 98.

o.   The Affiant deponed that the transfer instruments for the Suit Properties, as obtained by the Plaintiff/Applicant, were dated 12th November, 2025, purporting to transfer L.R. No. 13443 for a consideration of a sum of Kenya Shillings One Hundred Million (Kshs. 100,000,000.00/=) and L.R. No. 13442 for a consideration of a sum of Kenya Shillings Five Hundred Million (Kshs. 500,000,000.00/=), totaling a sum of Kenya Shillings Six Hundred Million (Kshs. 600,000,000.00/=), without any prior memorandum of sale, public notice, or competitive process, and in direct violation of the subsisting Prohibitory Orders.

p.   The Affiant averred that no memorandum of sale was ever executed, disclosed, or served upon the Plaintiff/Applicant, and that the transfer documents contained no reference to any such memorandum or the date of any alleged auction or bidding, further evidencing the clandestine and illegal nature of the private treaty transaction.

q.   The 6th Defendant failed to serve the Plaintiff/Applicant with any warrant of attachment, proclamation of attachment, or notification of sale, as required under Rules 6, 7, and 12 of the Auctioneers Rules, 1997, and Order 22 Rule 6 of the Civil Procedure Rules, 2010, thereby rendering the attachment and subsequent sale procedurally defective and void ab initio. 

r.   The Affiant deposed that the transfer documents stated that the sale was pursuant to a court order dated 30th September, 2025 authorizing the sale, despite the earlier Prohibitory Orders of 8th August, 2025 remaining in force and registered, thereby indicating fraudulent procurement or misrepresentation of court authority without lifting the prohibition.

Purchaser incapacity and contradictory claims

s.   The Affiant averred that following investigations, it emerged that the entity registered as proprietor was the 1st Defendant, Genesis Avenue Investments Limited.

t.   A CR - 12 form extract from the Business Registration Service confirmed that the 1st Defendant was incorporated on 27th October, 2025, long after the impugned execution process, and therefore lacked legal capacity at the material time. A copy of the CR - 12 Form for Genesis Avenue Investments Limited was annexed at pages 47 to 48.

u.   The Affiant reiterated that the beneficial owner of the 1st Defendant was the 2nd Defendant, The First Avenue Investments LLC, a foreign entity domiciled in Abu Dhabi and not registered in Kenya.

Gross disproportionality and oppression

v.   The Affiant deponed that the decree sought to be enforced amounted to approximately a sum of Kenya Shillings Thirty Two Million Eight Seventy Two Thousand Twenty Four and thirty Cents (Kshs. 32,872,024.32/=) while the Suit Properties had a conservative market value of a sum of Kenya Shillings One Billion Eight Hundred Million (Kshs 1,800,000,000.00/=).

w.   A valuation by Knight Frank Valuers Limited, issued on 12th January, 2026 for a valuation conducted on 8th December 2025, showed that the Market Value was a sum of Kenya Shillings One Billion Eight Hundred Million (Kshs. 1,800,000,000/=). The valuation report was annexed at pages 99 to 179.

x.   The Affiant reiterated that in that case, the forced sale value was a sum of Kenya Shillings One Billion Three Hundred and Fifty Million (Kshs. 1,350,000,000/=), representing a 25% discount on market value for a quick sale scenario.

Sale at Gross Undervalue and Defeat of Equity Tenets

yz.   The Affiant deposed that the purported transfer instruments dated 12th November, 2025 indicated a sale of the properties for a total consideration of a sum of Kenya Shillings Six Hundred Million (Kshs. 600,000,000) for L.R. No. 13443 and a sum of Kenya Shillings Five Hundred Million (Kshs. 500,000,000/=) for L.R. No. 13442).

.   The Knight Frank report established a fair market value of a sum of Kenya Shillings One Billion Eight Hundred Million (Kshs. 1,800,000,000/=) as a going concern, based on rigorous methodology including Income Capitalization via DCF, factoring in revenue projections, market comparable, and refurbishment assumptions. The sale price of a sum of Kenya Shillings Six Hundred Million (Kshs. 600,000,000/=) represented only 33.3% of this value—a discount of approximately 66.7% (Kshs. 1,200,000,000 shortfall). The Affiant reiterated that this was not a minor variance but a fundamental undervaluation, far exceeding typical market fluctuations or negotiation discounts.

.   The Affiant deponed that even under a “forced sale” scenario (e.g., distress or quick liquidation), the report assessed the value at a sum of Kenya Shillings One Billion Three Hundred and Fifty Million (Kshs. 1,350,000,000/=) —a 25% reduction from market value to account for urgency. The actual sale price was 55.6% below this forced sale value of a sum of Kenya Shillings Seven Fifty Million (Kshs. 750,000,000 shortfall), indicating that the transaction was not even aligned with a distressed execution disposal, which is the lowest reasonable threshold in valuation practice.

.   The Affiant deponed that the building reinstatement cost alone was a sum of Kenya Shillings One Billion Eight Eight Four Million (Kshs. 1,884,000,000 (excluding land), highlighting the intrinsic worth of the improvements. The Affiant averred that selling the entire asset (land and resort) for a sum of Kenya Shillings Six Million (Kshs. 600,000,000/=) ignored the replacement value of a 209‑bed resort with premium amenities, suggesting the price failed to capture the property’s tangible and operational assets.

.   The Affiant reiterated that the report’s analysis of the South Coast hospitality sector showed robust demand for beachfront resorts such as this, citing proximity to airports, a 230‑meter beach frontage, and tourism recovery in 2025. The Affiant deposed that comparable sales or income projections would not justify such a low price absent extenuating circumstances, which were not evident. This undervaluation was “gross” as it defied objective market data and professional standards.

.   The Affiant averred that as a high‑value asset owned by Sucham Investments Limited, any sale by directors or agents was required to prioritize the company’s interests, including maximizing shareholder value under Kenyan company law, such as the Companies Act, 2015. The Affiant deponed that selling by private treaty at one‑third of market value suggested a breach of fiduciary duty, potentially enriching the buyer at the expense of creditors, shareholders, or the company itself.

.   The Affiant reiterated that the buyer acquired a Kshs. 1.8 billion asset for Kshs. 600 million, thereby gaining Kshs. 1.2 billion in windfall value.

.   The Affiant deposed that the extreme undervaluation, timing, and context suggested potential fraudulent intent and collusion:

i.   Fraudulent Undervaluation:- The Affiant averred that the sale price failed to reflect the property’s true value (as determined by an independent valuation), suggesting deliberate misrepresentation or suppression of value. Fraud required intent to deceive; here, proceeding without a contemporaneous valuation implied knowledge of higher worth but willful underpricing to benefit specific parties.

ii.   Collusion Between Parties:- The Affiant reiterated that the asymmetric pricing (Kshs. 500 million for the larger parcel L.R. No. 13442 versus Kshs. 100 million for L.R. No. 13443) lacked a rational basis, suggesting tailored terms for collusion.

iii.   Bad Faith Indicators: - The Affiant deponed that there was no evidence of market testing (such as auctions or open bids) for a Kshs. 1.8 billion asset, reliance having been placed on private transfer instruments. The Affiant further averred that the Advocate for the Purchase was listed as a director in the buyer, implying a direct benefit.

.   The Affiant reiterated that the execution was therefore grossly disproportionate, oppressive, unconscionable, and amounted to an abuse of the court process.

Conduct of the Land Registry

.   The Affiant deponed that despite the registration of Prohibitory Orders and evident defects in the transfer instruments, the 3rd and 4th Defendants proceeded to register or facilitate the impugned transfers.

 

Continuing Harm and Need for Urgent Interim Relief

.   The Affiant averred that on or about 9th December 2025, the 1st Defendant forcibly attempted to take possession of Amani Tiwi Beach Resort, evicting the Plaintiff/Applicant’s staff and assuming control.

.   The Affiant reiterated that unless restrained, the Defendants were likely to further alienate, waste, or encumber the Suit Properties, thereby creating third‑party interests and irreversibly prejudicing the Plaintiff/Applicant.

.   The Affiant deposed that the Plaintiff/Applicant had established a strong prima facie case with a high probability of success, irreparable harm, and a balance of convenience overwhelmingly in its favour.

.   The Affiant averred that interim mandatory relief was justified to restore possession or, in the alternative, to secure all income derived from the illegal occupation to prevent unjust enrichment.

.   The Affiant reiterated that the Application was brought promptly upon discovery of the fraudulent transfers.

.   The Affiant deponed that absent urgent intervention by this Honourable Court, the Suit Properties risked permanent loss, thereby rendering the substantive suit nugatory.

III.   The Notice of Motion application dated 19th February, 2026

8.   The Application was brought under the provisions of Articles 40, 47 and 50 of the Constitution of Kenya, 2010, Sections 1A, 1B, 3A & 63 of the Civil Procedure Act, Cap. 21, Order 40 Rules 1, 2 & 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; and all enabling provisions of the law.

9.   The Applicant sought the following orders:-

a.   Spent.

b.   This Honourable Court be pleased to direct the Officer Commanding Station (OCS) Tiwi Police Station and/or the Regional Police Commander, Kwale County, to provide police assistance for purposes of ensuring compliance with and enforcement of the interim preservation orders issued on 29th January 2026.

c.   The said police assistance be limited to maintaining law and Order and preventing breaches of the peace during the enforcement of the Court’s orders.

d.   The costs of this Application be in the cause.

10.   The application by the Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 18 paragraphed annexed affidavit of CHARANJIT SINGH HAYER, the Director of the Plaintiff/ Applicant herein. The Affiant averred that:

a.   On 29th January, 2026, this Honourable Court granted a temporary injunction restraining the 1st and 2nd Defendants, whether by themselves, their agents, servants, employees, nominees or any persons claiming through them, from entering upon, occupying, remaining on, managing, operating, leasing, charging, selling, transferring, alienating, wasting or otherwise interfering with the suit properties known as Title Number C.R. 17508 (L.R. No. 13443) and C.R. 18325 (L.R. No. 13442), Kwale, developed as Amani Tiwi Beach Resort, pending inter partes hearing. Annexed hereto and marked as “CH - 1” was a copy of the said Order.

b.   The said Order was duly served upon the 1st and 2nd Defendants via email on 3rd February, 2026, and a Mail Suite report confirmed that the emails were successfully delivered and opened.

c.   Further physical service was effected as follows:

a)   On 4th February, 2026, service was effected at Ardhi House, 1st Floor, 1st Ngong Avenue, Nairobi (Office of the Chief Land Registrar). The documents were received at the reception and forwarded to the Chief Land Registrar, who acknowledged service by stamping and signing the copy.

b)   On 10th February, 2026 at 9:00 a.m., service of the Court Directions and Application was attempted at Tiwi Police Post. Upon advice, service was effected at Kwale Police Station where the Officer Commanding Station (OCS) accepted service and acknowledged receipt by stamping and signing the copy.

c)   On 10th February, 2026 at 12:30 p.m., service was effected at the Mombasa Lands Office (Legal Office of the Land Registrar). The documents were received and acknowledged by stamping and signing the copy.

d.   The Affiant reiterated that the orders had not been complied with at all, and that there existed a real and imminent risk of continued interference and breach of peace at the Suit Property. Annexed hereto and marked “CH2” was the Affidavit of Service.

e.   Upon engaging the Regional Police Commander, Kwale County, he indicated readiness to assist in ensuring compliance but requested a specific court directive authorizing police assistance.

f.   Without police supervision, there existed a high likelihood of confrontation, resistance, and escalation.

g.   The Application was made purely to facilitate compliance with existing orders and to preserve the dignity and authority of this Honourable Court.

h.   Unless the orders sought were granted, the substratum of the suit risked being rendered nugatory before the inter partes hearing scheduled for 24th March, 2026.

i.   The Plaintiff/Applicant stood to suffer irreparable loss if this Court did not intervene in the manner forthwith prayed in the Application.

j.   The Affiant reiterated that it was in the interest of justice that the Application filed therewith be certified as urgent and the orders sought therein be granted.

k.   The Affiant deponed that he swore the Affidavit in support of the Notice of Motion filed therewith and prayed for the orders sought therein to be granted in the interest of justice.

l.   The facts deponed to therein were true to the best of his knowledge, save where based on information and belief, the sources and grounds whereof were disclosed.

IV.   The Notice of Motion application dated 24th April, 2026

11.   The Application was brought under the provisions of Articles 40, 47 and 50 of the Constitution of Kenya, 2010, Sections 1A, 1B, 3A & 63 of the Civil Procedure Act, Cap. 21, Order 40 Rules 1, 2,3 & 4,Order 51 Rule 1 of the Civil Procedure Rules, 2010, the inherent jurisdiction of this Honourable Court, and all other enabling provisions of the law.

12.   The Plaintiff/Applicant sought the following orders:-

a.   Spent.

b.   Spent.

c.   Spent.

d.   This Honourable Court be pleased to grant a mandatory injunction directing that the 1st and 2nd Defendants, whether by themselves, their directors, agents, servants, employees, contractors or any person acting under their authority, be forthwith removed from the Suit Property and that the Plaintiff/Applicant be restored to immediate, vacant and exclusive possession thereof.

e.   This Honourable Court be pleased to cite the Directors of the 1st and 2nd Defendants for contempt of Court and commit them to civil jail for a period not exceeding six (6) months, or such other period or sanction as this Honourable Court may deem fit for their willful disobedience of the Court’s orders issued by this Honourable Court on 29th January, 2026.

f.   This Honourable Court be pleased to grant such further or consequential orders as may be necessary to safeguard the Suit Property, prevent abuse of the Court process, and ensure the effective administration of justice.

g.   The costs of this Application be provided for.

13.   The application by the Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 22 paragraphed annexed affidavit of CHARANJIT SINGH HAYER, the Director of the Plaintiff/ Applicant herein. The Affiant averred that:

a.   The Plaintiff/Applicant was, and had at all material times been, the lawful proprietor and/or beneficial owner of the properties known as Title Numbers C.R. 17505 (L.R. No. 13443) and C.R. 18325 (L.R. No. 13442) situate in Kwale County and developed as Tiwi Beach Resort (Hereinafter referred to as “the Suit Property”).

b.   The Plaintiff/Applicant instructed its Advocates on record, CM Advocates LLP, to file a Notice of Motion dated 28th January, 2026 seeking, inter alia, injunctive orders restraining the 1st and 2nd Defendants from interfering with the Suit Property.

c.   The said application was placed before the Honourable Court and on 29th January, 2026, the Honourable Justice L.L. Naikuni was pleased to issue orders restraining the 1st and 2nd Defendants from entering upon, occupying, remaining on, or in any manner interfering with the Suit Property pending the hearing and determination of the said application. Annexed hereto and marked as “CSH - 1” was a copy of the said Notice of Motion dated 28th January, 2026 and annexed and marked “CSH - 2” was a copy of the Court Orders issued on 29th January, 2026.

d.   Despite full knowledge of the said Court Orders, the 1st and 2nd Defendants through their agents, servants, and contractors or persons claiming through them had willfully, deliberately, and persistently disobeyed the same and had continued to act in blatant disregard of the authority of this Honourable Court.

e.   In particular, the 1st and 2nd Defendants by themselves and/or through their agents, servants, employees, nominees or persons claiming through them had unlawfully entered upon the Suit Property, remained thereon, and commenced and continued extensive construction, demolition, excavation, and renovation works.

f.   The 1st and 2nd Defendants’ agents, servants, and contractors were currently undertaking substantial structural alterations on the Suit Property, including but not limited to removal of fixtures, interference with installed systems, and alteration of key facilities within the resort.

g.   On 19th February, 2026, the Plaintiff filed before this Honourable Court a Notice of Motion Application dated 19th February, 2026 for orders inter alia sought that:

“The Officer Commanding Station (OCS) Tiwi Police Station and/or the Regional Police Commander, Kwale County, to provide police assistance for purposes of ensuring compliance and enforcement of the interim preservation orders issued on 29th January 2026.”

Annexed hereto and marked as “CSH - 3” was a copy of the Notice of Motion Application dated 19th February, 2026.

h.   He had received credible reports, photographic evidence, and information from former staff and other persons familiar with the operations of the Suit Property confirming that the 1st and 2nd Defendants had, inter alia, removed installed assets including air conditioning units and commenced significant renovations such as the stripping of tiles from the swimming pool and other core facilities. Annexed hereto and marked as “CSH - 4” were copies of photographs and other evidence demonstrating the ongoing activities on the Suit Property.

i.   The said activities were being undertaken rapidly and systematically and were clearly intended to alter the character and condition of the Suit Property in a manner that was irreversible.

j.   The 1st and 2nd Defendants were acting in a calculated and deliberate manner so as to entrench their unlawful presence on the Suit Property and to create a false impression of ownership and control.

k.   The Plaintiff further stated that the 1st and/or 2nd Defendants’ purported claim to ownership of the Suit Property was founded upon a private treaty sale which was seriously disputed, illegal and unlawful, and which was the subject of the proceedings before this Honourable Court.

l.   The Affiant deposed that he was advised by the Plaintiff’s Advocates on record, which advice he verily believed to be true, that notwithstanding any purported registration, the 1st and 2nd Defendants did not pay the full purchase price for the Suit Property and/or failed and/or refused to release the sale proceeds to the Plaintiff.

m.   The Affiant reiterated that in the circumstances, the 1st and 2nd Defendants could not be regarded as bona fide purchasers for value and had no equitable basis upon which to assert ownership or possession of the Suit Property.

n.   Therefore, it was  grossly unfair for the 1st and 2nd Defendants to purport to deal with the Suit Property as though they were the lawful owners while having failed to satisfy the fundamental consideration underpinning the alleged sale.

o.   The 1st and 2nd Defendants forcefully and unlawfully took possession of the Suit Property without any lawful authority, without any order of this Honourable Court granting them possession, and without issuing any lawful notice to the Plaintiff to vacate the Suit Property.

p.   The 1st and 2nd Defendants’ conduct by themselves and/or through their agents, servants, employees, nominees or persons claiming through them amounted to an impermissible act of self‑help and was contrary to established principles of law and equity.

q.   The 1st and 2nd Defendants were attempting to steal a march on the Plaintiff by establishing de facto possession, undertaking rapid developments, and creating a situation intended to prejudice the Plaintiff’s case and influence the outcome of these proceedings.

r.   Unless this Honourable Court intervened urgently, the 1st and 2nd Defendants would continue with the said construction and alterations, thereby causing irreparable damage to the Suit Property and rendering the Plaintiff’s claim nugatory and a futile academic exercise.

s.   The continued actions of the 1st and 2nd Defendants amounted to a grave contempt of Court and undermined the authority and dignity of this Honourable Court.

t.   He was further advised by the Plaintiff’s Advocates on record, which advice he verily believed to be true, that police assistance was necessary to enforce the Court’s orders and to restore possession to the Plaintiff, and that it was in the interests of justice that the orders sought in the accompanying Notice of Motion be granted.

V.    The Notice of Preliminary Objection by the 1st and 2nd Defendants

14.   The 1st and 2nd Defendants raised a Preliminary objection dated 10th March, 2026 to the Plaintiff/ Applicant’s Notice of Motion application dated 28th January, 2026 on the following pure points of law:-

a.   The application challenges execution, attachment and sale undertaken pursuant to a decree issued in ELRC Cause No. 8032 of 2023. Under the provision of Section 34(1) of the Civil Procedure Act, Cap. 21 all questions relating to execution, discharge or satisfaction of a decree must be determined by the court executing the decree.

b.   The Environment and Land Court, being a court of equal constitutional status to the Employment and Labor Relations Court (ELRC) under Article 162(2), lacks jurisdiction to review, supervise, vary, or invalidate execution of an ELRC decree.

c.   The substratum of the suit concerns enforcement of a monetary decree of approximately a sum of Kenya Shillings Thirty Two Million Eight Seventy Two Thousand Twenty Four and Thirty Cents (Kshs. 32,872,024.32/=) and alleged irregularities in execution and valuation, which constitutes a commercial and execution dispute rather than a dispute relating to title, use, occupation of land or environmental matters under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act.

d.   The present suit constitutes a collateral attack on a valid and subsisting ELRC decree and execution process, and is therefore an abuse of the court process.

e.   This Honourable Court lacks jurisdiction and must down its tools in accordance with the principle in the case of:- “Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd”, and the suit ought to be struck out with costs

VI.   The responses by the 1st and 2nd Defendants/Respondents’

15.   The 1st and 2nd Defendants responded the Notice of Motion application dated 24th April, 2026 through a 27 Paragraphed Replying Affidavit in May 2026 sworn by Ahmed Amer Omar Saleh, a director in the 1st and 2nd Defendants’ company wherein he averred that:

a.   He had read and understood the Plaintiff’s/Applicant’s Notice of Motion Application dated 24th  April, 2026, and swore the Affidavit in opposition thereto.

b.   The Application lacked merit was frivolous, vexatious and an abuse of the court process, and ought to have been dismissed with costs to the Respondents.

c.   The Plaintiff had filed an Application dated 28th January, 2026 seeking temporary injunctions to restrain the 1st and 2nd Defendants/Respondents from entering upon, occupying, managing, operating, leasing, charging, selling, trespassing, alienating, or wasting the property known as Title No. C.R. 17508 (L.R. No. 13443) and C.R. 18325 (L.R. No. 13442), Kwale, developed as Amani Tiwi Beach Resort. The Honourable Court granted an order to preserve the status of the suit property. (Attached and marked as “AAOS ‑ 1” was a copy of the order.)

d.   The 1st and 2nd Respondents filed a Notice of Preliminary Objection dated 10th March, 2026 in response to the said Application. The Preliminary Objection was pending determination by the Court and the Court ought not to have acted further without its disposition. (Attached and marked as “AAOS ‑ 2” was a copy of the Notice of Preliminary Objection.)

e.   The Plaintiff also filed an Application dated 19th February, 2026 seeking directions that the Officer Commanding Station (OCS), Tiwi Police Station, and the Regional Police Commander, Kwale County, provide police assistance for purposes of ensuring full compliance and enforcement of the Court Order issued on 29th January, 2026.

f.   The Applicant was attempting to cite the Respondents for contempt of court without proper service of the Court Orders of 29th January, 2026 or proof of service thereof. No Affidavit of Service was filed by the Applicant or uploaded to the CTS as proof of service.

g.   The Affiant reiterated that the Court’s record confirmed that the Orders of 29th January, 2026 were vacated on 13th April, 2026 in the presence of counsel for the Plaintiff/Applicant when the Application came up for inter partes hearing, and the orders sought were marked as spent. The Applicant was therefore attempting to cite the Respondents for contempt of Court Orders which no longer existed.

h.   The Plaintiff had now filed the instant Application, similar to the Applications dated 28th January, 2026 and 19th February, 2026, seeking the same orders of temporary injunction and contempt.

i.   The Orders sought ought not to have been granted since the 1st Respondent had been in possession of the suit property before issuance of the Ex - Parte orders.

j.   The Orders of 29th April, 2026 ought to have been vacated and/or set aside since they were obtained by material non‑disclosure of the fact that the 1st Respondent was the registered proprietor and had been in occupation for over one year.

k.   The Plaintiff approached the Court with unclean hands and ought to have been denied injunctive relief, which is equitable in nature.

l.   He was advised by his Counsel on record, whose advice he verily believed to be true, that Onguto J. in the case of:- “Republic – Versus - Kenya Medical Training College & Another Ex Parte Kenya Universities and Colleges Central Placement Service [2015] eKLR” emphasized the high duty of candour upon any applicant appearing Ex - Parte.

m.   The Orders of 29th April, 2026 operated as an Ex - Parte eviction order, and the 1st Respondent would be prejudiced and condemned unheard if evicted.

n.   The Applicant had hoodwinked the Court to obtain the orders without disclosing that the 1st Respondent was in possession of the suit property.

o.   The Application dated 24th April, 2026 was res judicata in respect of the Application dated 28th January, 2026, as it sought similar orders and raised similar issues already determined.

p.   The Affiant reiterated that the Court lacked jurisdiction to hear the Application since the substratum of the Plaintiff’s claim was an attack on execution of a decree in ELRC Cause No. E032 of 2023.

q.   He was advised by counsel, whose advice he believed to be true, that under the provision of Section 34(1) of the Civil Procedure Act, Cap. 21 all questions relating to execution must be determined by the court executing the decree.

r.   The Plaintiff had filed a similar Application dated 30th January, 2026 in “ELRC Cause No. E032 of 2023”, but the court declined the orders sought. (Attached and marked as “AAOS ‑ 3” was the said Application.)

s.   The Plaintiff had previously filed Mombasa ELC Suit No. E132 of 2025 regarding the same subject matter but withdrew it after the court declined interim orders. (Attached and marked as “AAOS ‑ 4” was the Application and Notice of Withdrawal.)

t.   The Plaintiff had also appealed the decision in ELRC Cause No. E032 of 2023. (Attached and marked as “AAOS ‑ 5” was the Notice of Appeal.)

u.   By filing the present suit in Kwale ELC, while suppressing the history of the ELRC execution and the failed Mombasa application, the Plaintiff was engaged in forum shopping and abuse of process.

v.   The 1st Respondent was in danger of unlawful eviction if the Orders of 29th April, 2026 stood, and that they ought to be set aside.

w.   There was imminent danger of eviction of the Respondents without being heard, which would cause miscarriage of justice and irreparable harm not compensable in monetary terms.

x.   The balance of convenience tilted in favour of discharging the ex parte injunctive orders of 29th April, 2026, since the 1st Respondent was in occupation and could not lawfully be ordered to vacate without being heard.

yz.   He implored the Court to set aside the ex parte injunctive orders issued on 29th April, 2026 to prevent miscarriage of justice and dismiss the Application dated 24th April, 2026 with costs.

VII.   The 5th Defendant’s Replying Affidavit

16.   The 5th Defendant opposed the Notice of Motion application dated 28th January, 2026, 19th February, 2026 and 24th April, 2026 through an 18 Paragraphed Replying Affidavit sworn by Peter Kinyua, the 5th Defendant on 3rd June, 2026 wherein he averred that:-

a)   He was the 5th Defendant/Respondent therein, well‑versed with the matters in issue, hence competent to swear the affidavit in response to the Notice of Motion Applications dated 28th January, 2026, 19th February, 2026, and 24th April, 2026.

b)   He had gone through the Applications in issue and, where necessary, the same had been explained to him by Counsel. Having understood the full import and tenor of the said Applications, he responded as set out.

c)   In totality the contents of the affidavit sworn by Ms. Priyanka Dilip Kumar Tiwari, the Legal Manager of the 1st and 2nd Defendants/Respondents, as well as the grounds of opposition preferred therein.

d)   He also relied on the annexures attached to the 1st and 2nd Respondents’ response, as they represented what transpired from the point of instructions until issuance of the memorandum of sale in favour of the 1st and 2nd Respondents.

e)   The instructions giving rise to the execution process emanated from the Employment and Labour Relations Court, Mombasa, in “ELRC Case No. E032 of 2023, Kenya Union of Domestic Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) – Versus -  Sucham Investments Ltd t/a Amani Tiwi Beach Resort”. True copies of the warrants of attachment and sale were contained at pages 1 to 3 of the annexures.

f)   Prior to undertaking the sale of the suit land, a court order was issued on 30th September, 2025 upon parties agreeing on the modalities and a consent being recorded. True copies of the consent, parties’ correspondences, and the court order were contained at pages 4 to 9 of the annexures.

g)   In compliance with the Honourable Court orders issued on 30th September, 2025, he proceeded with the public auction on 7th October, 2025, and the 1st Respondent was declared the highest bidder. He then issued the 1st Respondent with the certificate of sale as required by law. True copies of the certificates of sale were contained at pages 10 to 11 of the annexures.

h)   He was advised by Counsel, whose advice he vouched for as correct, that the execution process was done in strict compliance with the provisions of Order 22 Rule 68 to Rule 80 of the Civil Procedure Rules, 2010. Therefore, the Applicant could not feign ignorance when it had fully participated in the process leading to the sale.

i)   He was informed by Counsel, that the Honourable Court lacked jurisdiction to enforce the orders of the Employment and Labour Relations Court, as it was a court of equal status. The only avenue for the Applicant was either to seek review of the orders of 30th September, 2025 or prefer an appeal, but not to file the present suit and applications before the Honourable Court.

j)   Under Section 34 of the Civil Procedure Act, Cap. 21 all questions arising between parties to a suit in which a decree was passed were to be determined by the court executing the decree and not by a separate suit.

k)   Based on the above, the Applicant, in filing the present suit and applications, fell afoul of Section 34 of the Civil Procedure Act, Cap. 21. The suit and applications were therefore an abuse of process and ought to have been struck out forthwith.

l)   The orders and/or directions of the Honourable Court issued on 29th January, 2026, 19th February, 2026, and 24th April ,2026 were issued in favour of the Applicant when it had failed to disclose material facts pertinent to the matter, and thus ought to have been discharged.

m)   In furtherance of the Applicant’s non‑disclosure and its attempt to steal a march, it once again moved the Honourable Court on 13th May, 2026 seeking police assistance to enforce the orders of 29th January, 2026 and 19th February, 2026 without disclosing that it had sought the same orders earlier, which were declined.

n)   The Honourable Court, not being aware of the previous prayer for police assistance, issued the order ex parte. Upon the Respondents moving the Court accordingly, the said orders were discharged and/or vacated. True copies of the ruling and extracted order were contained at pages 12 to 21 of the annexures.

o)   All in all, the injunctive orders in place were obtained through material nondisclosure and as such, they ought to have been discharged ex debito justitiae.

p)   He relied on a bundle of documents paginated 1–21 and marked as Exhibits as “PK” in support of his averments.

q)   He swore the Affidavit in opposition to the Notice of Motion Applications dated 28th January, 2026, 19th February, 2026, and 24th April, 2026.

r)   The Affiant averred that all that he had deponed to was true and correct to the best of his knowledge and belief, save for information whose sources he had expressly disclosed.

VIII.   Submissions

17.   Sometimes in June, 2026 while all the parties were present in Court, they were directed to have the Notices of Motion application dated 28th January, 2026, 19th February, 2026, 24th April, 2026 and the Notice of Preliminary Objection dated 10th March, 2026, be disposed of by way of written submissions.

18.   Pursuant to that, all the parties duly complied with the Court’s directions. Subsequently thereto, the parties obliged, and a ruling date was accordingly reserved for the 14th July, 2026 by the Honourable Court.

A.   The Written Submissions by the Plaintiff/Applicant

19.   The Plaintiff through the Law firm of Messrs. CM Advocates LLP filed their written submissions dated 4th June, 2026. Mr. Mwaniki Advocate commenced his submission by stating that what was before this Honourable Court were three ( 3 ) Notice of Motion applications dated 28th January, 2026, 19th February, 2026, 24th April, 2026 and the 1st and 2nd Defendant’s Notice of Preliminary Objection dated 10th March 2026. Prayers 1 and 2 of the Application were spent. Thus, the Plaintiff/Applicant  sought the above stated orders.

20.   On the background, the Learned Counsel submitted that the Applications before the Honourable Court were  triggered by the following chain of events. The Plaintiff/Applicant is, and had at all material times been, the absolute and indefeasible registered proprietor of the leasehold interests comprised in Title Number C.R. 17508 (L.R. No. 13443) and Title Number C.R. 18325 (L.R. No. 13442) (the “Suit Properties”), situate in the County of Kwale, having lawfully acquired the same on or about 31st December, 2003 through duly registered transfers under the Land Registration Act. The Suit collectively comprise prime beachfront land upon which stands a fully developed hospitality establishment known as Amani Tiwi Beach Resort, a unique income-generating commercial asset with substantial goodwill and brand value.

21.   The Plaintiff was the Respondent in civil case “Employment and Labour Relations Court Cause No. E032 of 2023, Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers (KUDHEIHA) – Versus - Sucham Investments Limited t/a Amani Tiwi Beach Resort”, in which the Claimant, in that case, sought to enforce an alleged decree of approximately Kshs. 32.8 Million. The said proceedings were contested, including by an application to set aside an ex parte judgment on grounds of improper service, upon which a temporary stay of execution was granted on 5th August, 2024. On 8th August, 2025, and with the consent of all parties, the Honourable Employment and Labour Relations Court at Mombasa issued Prohibitory Orders expressly barring any sale, transfer, charge, or other disposition of the Suit Properties. 

22.   The said Prohibitory Orders were endorsed with a penal notice and were duly registered against the titles on or about 5th September 2025, thereby imposing a statutory embargo on all dealings pursuant to the provision of Section 68 of the Land Registration Act, 2012. Notwithstanding the subsisting Prohibitory Orders, the 5th Defendant, Kinyua & Company Auctioneers Limited, under ostensible instructions of the 6th Defendant, purported to attach, proclaim, and sell the Suit Properties in blatant contempt of court. It was instructive to note that at no time was the Plaintiff served with any proclamation of attachment, notification of sale, forced sale valuation, or public advertisement as required under the Auctioneers Act, the Auctioneers Rules, 1997, and the provision of Order 22 of the Civil Procedure Rules, 2010. 

23.   Vide a Memorandum of Sale signed on 7th October, 2025, in which the 6th Defendant confirms that a sale had allegedly happened on 7th October, 2025 and that the 15th Defendant, Genesis Avenue Investment Limited, was declared as the highest bidder and purchaser of the Suit Properties as follows;

(i)   Land Reference Number 13442 for the sum of Kenya Shillings One Hundred Million (Kshs. 500,000,000/=); and

(ii)   Land Reference Number 13443 for the sum of Kenya Shillings Five Hundred Million (Kshs. 100,000,000/=).

24.   It was not in despite that the Employment and Labour Relations Court in “ELRC Cause No. E032 of 2023, Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers (KUDHEIHA) – Versus - Sucham Investments Limited t/a Amani Tiwi Beach Resort”, entered a decree in favor of the Claimant therein of approximately Kshs 32.8 Million. This Court was therefore asked to believe that in order to recover approximately Kshs 32.8 Million, assets allegedly worth a sum of Kenya Shillings Six Hundred Million (Kshs. 600,000,000/=) had to be sold. The Counsel submitted that such a result bears little resemblance to execution and much closer resemblance to confiscation.

25.   On the alleged acquisition and whether it was legally and factually impossible. The Learned Counsel averred that the results of the Company Search (CR – 12 Form) obtained from the Business Registration Service confirms that the 1st Defendant, Genesis Investments Limited, how that the 1st Defendant was incorporated on 27th October, 2025. The sale having taken place on 7th October, 2025, it was difficult to comprehend how a Company that was only incorporated on 27th October, 2025 could have acquired the Suit Property twenty (20) days earlier.

26.   On the issues for determination. The Learned Counsel submitted that the facts outlined above disclose matters that extend far beyond a private dispute over land. They raise fundamental questions touching on the sanctity of court orders, the integrity of the judicial process, the protection of private property, the legality of execution proceedings, compliance with constitutional restrictions on land ownership, and the constitutional obligation to safeguard environmentally sensitive resources for present and future generations. At its core, this matter concerns whether parties may lawfully circumvent duly issued court orders, procure the transfer of land through a process riddled with procedural and legal irregularities, and thereafter rely on such irregularities to defeat constitutional and proprietary rights

27.   In those circumstances they respectfully submitted that the following issues arose for determination by this Honourable Court:

i)   Whether the Plaintiff has established the requirements for issuance of the orders sought.

ii)   Whether the circumstances of this case warrant the issuance of an order of inhibition under Section 68 of the Land Registration Act to preserve Titles Number CR. 17508 and CR. 18325 pending the hearing and determination of the suit.

iii)   Whether the Court should direct the Officer Commanding Station (OCS) Tiwi Police Station and/or the Kwale County Police Commander to enforce and supervise compliance with the orders sought.

iv)   Whether the 1st and 2nd Defendants’ Notice of Preliminary Objection dated 10th March 2026 is merited

28.   On whether the Plaintiff had established the requirements for issuance of the orders sought. The Learned Counsel argued that in determining whether an order for injunction can be granted, courts have relied on the principles set out in “Giella – Versus - Cassman Brown & Company Limited (1973) E A 358” as relied upon by the Learned Judge in the case of:- “Peter Kairu Gitu – Versus -  KCB Bank Kenya Limited & 9 another [2021] KEHC 7203 (KLR)” as follows:

“7. The conditions for consideration in granting an injunction were settled in the celebrated case of Giella – Versus - Cassman Brown & Company Limited (1973) E A 358, where the court expressed itself on the condition's that a party must satisfy for the court to grant an interlocutory injunction as follows: -

“Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience.” (Emphasis Supplied)

29.   On whether there was a prima facie case. The Learned Counsel asserted that in:- “Nguruman Limited – Versus - Nielsen & 2 others [2014] KECA 606 (KLR)”, the Court of Appeal reiterated the definition of a prima facie case and stated:

“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant's case is more likely than not to ultimately succeed.”

30.   According to the Learned Counsel, at this interlocutory stage the Plaintiff was not required to prove its case with finality. It is sufficient for the Applicant to only demonstrate the existence of an arguable case, the infringement or threatened infringement of its rights, a disregard of due process, or a real likelihood of unlawful/irregular conduct by the 1st, 2nd, 5th and 6th Defendants. Once such a showing was made, the evidential burden shifts to the Defendants to explain and justify the actions.

31.   They submitted that the Plaintiff had more than discharged this burden. The material placed before this Honourable Court demonstrates that:-

a.   the Suit Properties were allegedly sold notwithstanding subsisting prohibitory orders registered against the titles;

b.   no proclamation, notification of sale, valuation, or advertisement was served upon the Applicant as required by law;

c.   assets allegedly worth approximately a sum of Kenya Shillings Six Million (Kshs 600, 000.00/=) were purportedly sold in execution of a decree of approximately a sum of Kenya Shillings Thirty two Million Eight Hundred Thousand (Kshs. 32, 800, 000.00/=); and

d.   the 1st Defendant, Genesis Investments Limited, the purported purchaser, appears to have acquired the Suit Properties before 20 days before it was even incorporated.

32.   These were minor procedural defects, there were substantial irregularities which on their face, call into question the legality, validity, and bona fides of the entire transaction. In those circumstances, the Applicant had plainly established a prima facie case warranting the intervention of this Honourable Court. 

33.   On the irregularities/ illegalities on the purported acquisition of the suit property by the 1st Defendant, Genesis Investment Limited. The Learned Counsel asserted that results of the Company Search (CR – 12 Form) obtained from the Business Registration Service confirms that the 1st Defendant, Genesis Investments Limited, how that the 1st Defendant was incorporated on 27th October, 2025. With the alleged sale having taken place on 7th October, 2025, it was difficult to comprehend how a Company that was only incorporated on 27th October, 2025 could have acquired the Suit Property twenty (20) days earlier. Unless, of course, the 1st Defendant had somehow mastered the art of transacting before its own legal existence, the alleged transaction raises serious questions as to its authenticity and validity.

34.   Even more curious is the fact that the beneficial owner of the 1st Defendant is the 2nd Defendant, First Avenue Investments LLC, a foreign entity domiciled in Abu Dhabi and not registered in Kenya. As a non-citizen entity, the 2nd Defendant was constitutionally restricted from acquiring or holding land in Kenya except in strict compliance with Article 65 of the Constitution and the applicable provisions of Kenyan land law. The Court was therefore confronted with a rather remarkable proposition: that a foreign entity, itself incapable of lawfully holding the Suit Property absent compliance with Kenyan law, allegedly utilized a company that had not yet come into existence to acquire the same property some twenty (20) days before that company was incorporated. Such a narrative is not merely improbable; it strains credulity to breaking point.

35.   They were guided by the decision of the Court in case of:- “Simona Rizzoti – Versus – Kenya Way Limited [2021] KEHC 6339 (KLR)” where it was held that:-

“Until a company has been incorporated, it cannot contract or do any act. In Civil Appeal 189 of 2016 Clement Muturi Kigano – Versus - Kibera Development Company Limited [2019] eKLR it was held:- 

“Until a company has been incorporated, it cannot contract or do any act. Nor once incorporated, can a company become liable for or entitled under contracts purporting to be made on its behalf prior to incorporation - for ratification is not possible when the ostensible principal did not exist. Any preliminary pre-incorporation arrangements will either have to be left to mere gentleman's agreements or the promoters will have to undertake personal liability”

36.   The 1st Defendant may ultimately had an explanation for these extraordinary circumstances. However, at this stage, the documentary evidence before the Court points to a purchaser that did not legally exist on the date of the alleged sale and whose beneficial ownership traces to a foreign entity facing constitutional restrictions on land ownership. Those facts alone raise serious questions that could only be resolved at trial. In the meantime, equity dictate that the Suit Properties be preserved. The law cannot permit parties to further deal with, alienate, or alter property acquired through a process whose legality is under such substantial and legitimate challenge.

37.   On the irreparable injury/ loss that could not be compensated by an award of damages. The Learned Counsel averred that Justice M. A. Odeny in the case of:- “Banis Africa Ventures Limited – Versus - National Land Commission [2021] KEELC 4243 (KLR)” in defining the irreparable injury/loss quoted Halsbury’s Laws of England [Halsbury’s Laws of England, Third Edition, Volume 21, paragraph 739, page 352 where it was noted:-

“It is the very first principle of injunction law that prima facie the court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. Where the court interferes by way of an injunction to prevent an injury in respect of which there is a legal remedy, it does so upon two distinct grounds first, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the Plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages an injunction may be granted, if the act in respect of which relief is sought is likely to destroy the subject matter in question” 

In order to show irreparable harm, the moving party must demonstrate that it is a harm that cannot be quantified in monetary terms or which cannot be cured. But what exactly is ‘irreparable harm’? Robert Sharpe, in “Injunctions and Specific Performance”, [Robert Sharpe, Injunctions and Specific Performance, Looseleaf, (Aura, On: Cananda Law Book, 1992), P 2-27] states that “irreparable harm has not been given a definition of universal application: its meaning takes shape in the context of each particular case.

38.   The Petitioner/Applicant has produced before this Court photographs and video evidence showing the extent of the excavation, wastage, destruction and construction works being undertaken by the 1st and 2nd Defendants. The irreparable injury in the present case arises from the fact that the 1st Defendants continue to assert proprietary rights over the suit Properties pursuant to a transaction whose legality is seriously contested. 

39.   As demonstrated above, the purported sale was allegedly conducted notwithstanding subsisting prohibitory orders, in the absence of the mandatory safeguards prescribed under the Auctioneers Act and Auctioneers Rules, and in favour of a company which, according to official records, had not even been incorporated on the date of the alleged acquisition. 

40.   They contended that unless restrained by this Honourable Court, the Defendants are likely to continue occupying, managing, operating, transferring, charging, leasing, or otherwise dealing with the Suit Properties on the strength of the impugned transaction. Should such dealings be permitted to proceed, the Suit Properties may pass into the hands of third. parties, additional interests may be created over the titles, and the dispute before the Court may become significantly more complex, if not altogether nugatory. The Plaintiff’s apprehension is not speculative. The very fact that the Suit Properties were allegedly sold despite registered prohibitory orders, and despite the existence of a decree of approximately Kshs 32.8 Million being used to justify the disposal of assets allegedly valued at approximately a sum of Kenya Shillings Six Million (Kshs. 600, 000, 000/=), demonstrates a real and continuing threat to the Applicant's proprietary rights.

41.   In those circumstances, an award of damages would not constitute an adequate remedy. The issue before the Court is not merely the value of the Suit Properties but the preservation of the subject matter of the suit pending a determination of whether the purported sale, transfer and acquisition were lawful in the first place. If the Suit Properties are further alienated or encumbered before that determination is made, the Applicant's right to challenge the impugned transaction may be irretrievably prejudiced.

42.   The Learned Counsel submitted that the Applicant therefore respectfully submitted that the only effective means of preventing further prejudice and preserving the substratum of the suit is the grant of the injunctive and inhibitory orders sought. It is a trite law that where a party’s claim cannot be adequately compensated through an award of money or damages, the Court should not grant an injunction. They relied on the case of “Nguruman Limited (supra)” where the Court stated; 

“The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot ‘adequately’ be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”

43.   In this instance, it was not possible to quantify the loss that would be occasioned if the 1st and 2nd Defendants were allowed to retain and further dispose of rights allegedly acquired through a process tainted by illegality and procedural irregularities. That should a third-party interests be created or further transfers effected, no award of damages can adequately restore the Applicant to the position it occupied before the impugned transaction.

44.   On the balance of convenience. The Learned Counsel opined that the Court dealing with the issue on balance of convenience expressed itself in “Paul Gitonga Wanjau – Versus - Gathuthi Tea Factory Company Ltd & 2 others [2016] KEHC 7263 (KLR)” stating that;

“Where any doubt exists as to the applicants' right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies.”

45.   The Learned Counsel submitted that the uncontroverted evidence before this court tilts the balance of convenience towards granting the injunctive prayer for by the Petitioner/Applicant. The Plaintiff had established that;

46.   The Suit Properties were allegedly sold notwithstanding subsisting Prohibitory Orders issued by the Employment and Labour Relations Court and duly registered against the titles. The Plaintiff was never served with a Proclamation of Attachment, Notification of Sale, Forced Sale Valuation, or any public advertisement as required under the Auctioneers Act, the Auctioneers Rules, and the Civil Procedure Rules. The purported sale was allegedly undertaken to satisfy a decree of approximately Kshs. 32.8 Million through the disposal of assets allegedly valued at approximately a sum of Kenya Shillings Six Hundred Million (Kshs. 600,0000,000/=), a disparity that raises serious questions regarding the legality and proportionality of the execution process.

47.   No explanation had been offered as to why it was necessary to dispose of both Suit Properties in satisfaction of a decree of approximately a sum of Kenya Shillings Thirty Two Million Eight Hundred (Kshs. 32, 800, 000/=). In particular, the 1st, 2nd, 5th and 6th Defendants will fail to explain why the alleged sale of Land Reference Number 13443 for a sum of Kenya Shillings One Million (Kshs, 100,000,000/=) which was sufficient to satisfy the decretal sum necessitated the further sale of Land Reference Number 13442 for an additional a sum of Kenya Shillings Five Hundred Million (Kshs. 500,000,000/=). Put differently, the Defendants invite this Honourable Court to accept that assets allegedly sold for an aggregate sum of a sum of Kenya Shillings Six Hundred Million (Kshs. 600,000,000/=) were disposed of in order to recover a decree of approximately a sum of Kenya Shillings Thirty Two Million Eight Hundred Thousand (Kshs 32, 800, 000/=). No attempt has been made to demonstrate the necessity, proportionality, or legality of such a course of action.

48.   The Learned Counsel submitted that records from the Registrar of Companies show that the alleged purchaser, the 1st Defendant, was not incorporated until 27th October, 2025, notwithstanding that the purported sale is said to have occurred on 7th October, 2025. The beneficial ownership of the 1st Defendant is traced to the 2nd Defendant, a foreign entity, thereby raising substantial constitutional and legal questions regarding the validity of the acquisition. There exists a real risk that the Defendants may continue to occupy, manage, alienate, transfer, charge, lease, develop, or otherwise deal with the Suit Properties pending the determination of this suit.

49.   The Learned Counsel submitted that if the orders sought are granted, the Defendants will suffer no prejudice beyond being required to preserve the status quo pending the hearing and determination of the suit. Conversely, if the orders sought are declined and the Suit Properties are further alienated, encumbered, transferred, or subjected to additional third-party interests, the Plaintiff's suit may be rendered nugatory and any eventual Judgment in its favour substantially undermined. They submitted that the balance of convenience therefore tilts overwhelmingly in favour of preserving the Suit Properties and maintaining the status quo until the legality of the impugned transaction can be fully investigated and determined by this Honourable Court.

50.   On whether the Court should direct the Officer commanding station (OCS) Tiwi Police Station and/ or the Kwale County Police commander to enforce and supervise compliance with the orders sought. The Learned Counsel argued that on 29th January, 2026, this Court granted orders that:- 

“Pending the hearing and determination of this Application (above), a temporary injunction be hereby issued restraining the 1st and 2nd Defendants whether themselves, their agents, servants employees, nominees or any person claiming through them from entering upon, occupying, remaining on, managing, operating, leasing, charging, selling, transferring, alienating, wasting or otherwise in any manner interfering with the properties known as Titles Numbers C.R. 17505 (L.R. No. 13443) and C.R. 18325 (L.R. No. 13442), Kwale developed as Tiwi Beach Resort.”

51.   Further on 29th April, 2026, the Court granted further orders that;

“there be issued temporary Injunctive orders restraining the 1st & 2nd Defendants/Respondents herein from entering upon, remaining, occupying, constructing, renovating, altering, demolishing, excavating, developing, managing, operating or in any manner interfering with all that parcel of land known as Land Reference Numbers CR 17505 (LR. No. 13443& and CR 18325 (LR. No. 13442) situated in the County of Kwale & developed as Tiwi Beach resort pending the hearing and final determination of the application.”

52.   Since the issuance of the above orders the 1st and 2nd Defendants have increased activity on the Suit Properties by constructing, excavating, altering, demolishing, improving, excavating, digging, drilling, burrowing and dredging in the same. In complete disregard of the orders issued on 29th January, 2026 and 29th April, 2026, the 1st and 2nd Defendants have unlawfully allowed themselves, their agents, servants, employees, nominees, and/or any persons acting or claiming through them, to enter upon and remain on the Suit Property and to continue with construction and related activities thereon, in blatant defiance of this Honourable Court’s authority.

53.   It was not undisputed that the 1st and 2nd Defendants were well aware of the orders issued by this Court on 29th January, 2026 and 29th April, 2026, as well as the issues being raised by the Plaintiff in the main suit herein, yet they have willfully, deliberately, and in bad faith continued to act in defiance thereof, and have persisted with the impugned activities on the Suit Properties. They therefore submitted that the continued conduct of the 1st and 2nd Defendants in blatant disregard of the express orders of this Honourable Court had the effect of undermining the authority of this Court and defeating the very purpose for which the injunctive orders were issued. Unless restrained and supervised, the 1st and 2nd Defendants are likely to continue with acts of interference with the Suit Properties, thereby rendering the Court's orders ineffectual and the proceedings nugatory.

54.   In the circumstances, it was necessary and in the interests of justice that this Honourable Court issues directions to the Officer Commanding Station (OCS) Tiwi Police Station and/or the Kwale County Police Commander to supervise, enforce, and ensure strict compliance with the orders of this Court. Such directions are not punitive in nature but are intended to preserve the authority of the Court, maintain law and order, and ensure that the subsisting orders are not rendered a mere academic exercise.  According to the Learned Counsel submitted that the Plaintiff prayed that this Honourable Court be pleased to granted this order.

55.   On the submissions on whether the 1st and 2nd Defendants’ Notice of Preliminary Objection dated 10th March, 2026 was merited. The Learned Counsel asserted they shall address the question on whether the 1st and 2nd Defendants’ Notice of Preliminary Objection dated 10th March, 2026 was merited as follows:

56.   The Plaintiff opposed the Preliminary Objection dated 10th March, 2026 and submits that the same is misconceived and does not raise pure points of law capable of disposing of the Application in limine. The Preliminary Objection is predicated on the assertion that this Honourable Court lacks jurisdiction under the provision of Article 162(2) of the Constitution and Section 34 of the Civil Procedure Act on the basis that the dispute relates to execution of a decree in ELRC Cause No. E032 of 2023. However, the issues before this Court extend far beyond the execution of a decree and concern the legality of subsequent dealings, transfer, and alleged acquisition of interests in the Suit Property by the 1st Defendant.

57.   The Plaintiff's case, as set out in not just the Notice of Motion application dated 28th January, 2026 but also in the Plaint and supporting documents dated 28th January, 2026, is anchored on, inter alia:

i)   The alleged acquisition by the 1st Defendant and transfer of the Suit Properties was disregard of subsisting prohibitory orders issued by the Employment and Labour Relations Court and registered against the titles in respect of the Suit Properties;

ii)   The 5th and 6th Defendants’ failure to adhere to the mandatory statutory requirements under the Auctioneers Act, the Auctioneers Rules, 1997, and the Civil Procedure Rules, 2010, particularly in relation to proclamation, valuation, notification of sale, and public advertisement of the alleged auction processes.

iii)   A grossly disproportionate execution process resulting in sale of the Suit Properties for a sum of Kenya Shillings Six Hundred Million (Kshs. 600,000,000/=) in satisfaction of a decree of approximately a sum of Kenya Shillings Thirty Two Million Eight Hundred (Kshs. 32, 800, 000/=).

iv)   The purported purchaser, 1st Defendant, Genesis Investments Limited, was incorporated on 27th October, 2025 while the sale took place on 7th October, 2025, exactly twenty (20) days earlier.

v)   Allegations that the, The First Avenue Investments LLC, the 2nd Defendant and the beneficial owner of the 1st Defendant is a foreign entity subject to constitutional restrictions under Article 65 of the Constitution.

58.   Strictly speaking, these issues do not constitute a mere challenge to execution of a decree. They raise substantial questions as to the legality, validity, and constitutional compliance of dealings affecting Suit Property, which fall squarely within the jurisdiction of this Honourable Court under the provision of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act.

59.   They submitted that the reliance on Section 34 of the Civil Procedure Act is misplaced. The Applicant is not inviting this Honourable Court to review, vary, or interfere with the decree issued by the Employment and Labour Relations Court. Rather, the Applicant challenges the legality of subsequent actions allegedly undertaken in execution, including alleged transfer and registration of interests in the Suit property contrary to express court orders and statutory requirements.

60.   It was their submission that the issues raised by the Plaintiff were not confined to the executing court and were properly within the jurisdiction of this Court where title to land, proprietary rights, and validity of registration are directly in issue. Further, the assertion that this suit constitutes an attack on a valid decree is equally misconceived. The Applicant does not impugn the existence of the decree in ELRC Cause No. E032 of 2023.

61.   It is trite law that jurisdiction is determined by the nature of the dispute as pleaded. Where, as in the present case, the dispute concerns alleged unlawful acquisition, registration, and dealings with land, coupled with constitutional and statutory violations. They submitted that the Environment and Land Court is properly seized of jurisdiction. They also submitted, accordingly, that the Preliminary Objection does not meet the threshold of a proper Preliminary Objection as it calls for interrogation of contested facts, documentary evidence, and the legality of the impugned transactions, all of which are matters for substantive hearing.

62.   The Learned Counsel submitted that the Plaintiff/ Applicant therefore prayed that the Preliminary Objection dated 10th March, 2026 be dismissed with costs, the present application be allowed and the suit proceed for determination on its merits.

 

 

 

 

B.   The Written Submissions by the 1st and 2nd Defendants

63.   The 1st and 2nd Defendants filed their written submissions dated 4th June, 2026 through the Law firm of Messrs. CR Advocates LLP. Mr. Kadima Advocate submitted that there were the 1st and 2nd Defendants’ submissions with respect to:

a)   The 1st and 2nd Defendants’ Preliminary Objection dated 10th March, 2026, challenging the jurisdiction of this Court to entertain  the suit and the application; and

b)   The Plaintiff’s Notice of Motion application dated 29th January, 2026 and 19th February, 2026, seeking interim orders and police assistance to  enforce interim preservation orders.

64.   For judicial economy of time, these submissions treat both matters  collectively as they are fundamentally anchored on the question of this  Court's jurisdiction to interfere with a concluded execution process arising  from a court of concurrent jurisdiction.

65.   The Learned Counsel on the background submitted that the genesis of this dispute lies in the Employment and Labour Relations  Court (ELRC) Cause No. E032 of 2023, a claim filed by the 5th Defendant(KUDHEIHA Workers Union) against the Plaintiff, Sucham Investments  Limited. On 10th May, 2024, the ELRC issued a partial decree in favor of  the 5th Defendant for a sum of Kenya Shillings Thirty Two Million Eight Seventy Two Thousand Twenty Four and Thirty Three (Kshs. 32,872,024.33/=). Following the Plaintiff's failure to satisfy the Judgment debt, the 5th Defendant initiated execution proceedings where the 6th Defendant  (Kinyua & Company Auctioneers) was instructed to attach and sell the suit  properties known as C.R. 17508 (L.R. No. 13443) and C.R. 18325 (L.R.  No. 13442), located in Kwale. With the authorization of the Court, the properties were sold in an Auction to the 1st Defendant (Genesis Investments Limited) for the sum of the  Judgment debt plus costs. The 1st Defendant subsequently paid the full  purchase price, obtained a Certificate of Sale, and proceeded to register  the transfer.

66.   According to the Learned Counsel, the Plaintiff/ Applicant contended that the sale was conducted irregularly,  citing a disparity between the sale price and their own valuation of the  property (estimated at over Kenya Shillings Six Hundred Million (Kshs. 600, 000/=). Before filing the current suit  in Kwale, the Plaintiff filed Mombasa ELC Suit No. E132 of 2025, which  was later withdrawn after the court declined to grant interim preservation  orders. The Plaintiff had now moved this Court (Kwale ELC) vide a Notice of Motion application  dated 19th February, 2026, seeking police assistance to enforce interim  orders and restrain the 1st and 2nd Defendants from occupying or  managing the properties.

67.   In response, the 1st and 2nd Defendants filed a Preliminary Objection and a Replying Affidavit, asserting that this Court lacks jurisdiction to  interfere with a concluded execution process of a court of concurrent  jurisdiction (the ELRC).The court lacks jurisdiction to declare an execution  process unlawful since decrees are challenged in the same court which  rendered the decision. Secondly, the Environment and Land Court lacks jurisdiction to handle  auction related claims since it did not fall within the ambit of the Environment and Land Court Act but a commercial process.

68.   The Learned Counsel relied on the following issues for determination by the Court:-

a.   Whether this Honourable Court has jurisdiction to entertain a suit that  seeks to review or invalidate the execution of a decree issued by the  Employment and Labour Relations Court (ELRC).

b.   Whether the Plaintiff’s Application and Suit constitute an abuse of the  court process.

c.   Whether the Plaintiff has met the legal threshold for the grant of injunctive  relief and police assistance.

69.   On whether this Honourable Court has jurisdiction to entertain a suit that  seeks to review or invalidate the execution of a decree issued by the  Employment and Labour Relations Court (ELRC). The Learned Counsel averred that this Court lacks the requisite jurisdiction to hear this matter. The substratum of the Plaintiff’s claim was to challenge the attachment and sale of L.R. No. 13443 and L.R. No. 13442 conducted pursuant to a decree in ELRC Cause No. E032 of 2023. Under the provision of Section 34(1) of the Civil Procedure Act, Cap. 21 all questions arising  between the parties to the suit in which the decree was passed, or their  representatives, and relating to the execution, discharge, or satisfaction of  the decree must be determined by the court executing the decree. If the  Plaintiff was aggrieved by the sale, their recourse lay strictly within the  ELRC

70.   In the case of “Nazir Jinnah – Versus - Asmahan Peterson & 2 others [2013] eKLR”, the court,  J. B. Havelock, J. as then he was, stated as follows: -

“I have considered the provisions of section 34 (1) of the Civil Procedure Act  which are very clear. It reads: “All questions arising between the parties to the  suit in which the decree was passed, or their representatives, and relating to the  execution, discharge or satisfaction of the decree, shall be determined by the court  executing the decree and not by a separate suit. To my mind, therefore, any  questions as to the value of the suit motor vehicle, the legality of the auction sale  or the execution process should be addressed to the court executing the decree. In  this instance, it is the Chief Magistrate’s Court at Milimani. As I read section 34  (1) this court has no jurisdiction in relation to such matters and on that ground  alone…” Emphasis added.

71.   Furthermore, the Environment and Land Court and Employment and  Labor Relations Court are courts of equal constitutional status under  the provision of Article 162(2) of the Constitution. It is a settled principle of law that a  court of equal status cannot sit on appeal over, supervise, or vary the  orders and execution processes of another. The Supreme Court decision in “Re Interim Independent Electoral  Commission 2011, eKLR”, held that jurisdiction cannot be implied where a  statute expressly confers it on a specific court.

72.   In the now “Classicus locus” case of:-  “Owners of the Motor Vessel “Lilian S” – Versus - Caltex Oil (Kenya) Ltd  (1989) KLR 1”, the Court of Appeal held:

“Jurisdiction is everything. Without it, a court has no power to make  one more step... if a court has no jurisdiction, it must down its tools.”

73.   They humbly submit to this Honourable Court to down its tools and stop any further action as the same will be null and void ab initio.

74.   On whether the Plaintiff’s application and suit constitute an abuse of the Court process. The Learned Counsel submitted that the 1st and 2nd Respondents have proved that the Plaintiff  previously filed Mombasa ELC Suit No. E132 of 2025 regarding the same  subject matter. That suit was only withdrawn after the court declined to  grant interim orders. The current Applications have been made with a material non-disclosure of the fact that a similar Application had been filed at Mombasa ELC Suit  No. E132 of 2025. The orders being sought are for equitable relief and we  urge the Honorable Court to deny the same for material non-disclosure.  The Application was made with unclean hands and injunctive orders ought to  be denied since it is an equitable relief and could not be granted by fraudulent  misrepresentation of facts.

75.   The Plaintiff/Applicant also failed to disclose that it had filed a similar  Application dated 30th January, 2026, at the Employment and Labor  relations cause no. E032 of 2023, but the court declined the orders sought. The filing of the present suit in Kwale ELC, while suppressing the history of the ELRC execution and the failed Mombasa application, is a classic  case of forum shopping and ought to be denied injunctive relief. Onguto, J. in “Republic – Versus - Kenya Medical Training College & Another  Ex-Parte Kenya Universities and Colleges Central Placement Service  [2015] eKLR” held that:

“… I must state and emphasize the high duty of candour fixed  upon any applicant to court, appearing ex parte. A party  appearing before the court without notice to the other (ex parte) must exhibit a high quality and degree of sincerity and honesty.  He must be guileless. He must be frank. He must be open. He must  keep nothing that touches on the matter away from the court. He  must act in utmost good faith. If he does not so act, he does so at  his own risk.”

76.   It is an abuse of process to initiate multiple proceedings on the same issue  in different courts to obtain a favorable result that was previously denied.

77.   They relied on “Magania Tea Factory Co. Limited – Versus – John Naamab Mutavi Nyaga & 3 Others [2008] KEHC 248 (KLR)”, where the Court held that;

“Applying the principle set out in the above case, Caltex Oil (K)  Limited, supra, it is clear that the Applicant has raised two  applications raising similar issues and seeking orders of similar  effect. It is therefore clear that the instant application is res  judicata, as it raises similar subject matter that was substantially  in issue in the previous application. This previous application was  heard and determined on merit. The application is an abuse of the  court process and for that reason, ought to be struck out.”

78.   The duty of full disclosure is well established in “Bahadurali Ebrahim  Shamji – Versus - Al Noor Jamal & 2 others (1998) eKLR” that an Applicant  seeking interim injunction must make the fullest possible disclosure of all  material facts and the failure to do so disentitles such a party from  obtaining an advantage from the proceedings. 

79.   They also relied on the Court of Appeal decision in “Varsani & 2 Others – Versus -  Republic (2026) KECA 1004(KLR)”, where it upheld the High Court  decision to dismiss the Application, which the Applicant had repeatedly  filed in the same suit and reaffirmed that proceedings should proceed to  conclusions without unnecessary interlocutory Applications.

80.   On whether the Plaintiff has met the Legal threshold for the grant of injunctive relief and police assistance. The Learned Counsel grant of an interlocutory injunction is a matter of judicial  discretion, which must be exercised on settled legal principles. As  enunciated in the locus classicus case of “Giella – Versus - Cassman Brown & Co.  Ltd [1973] EA 358”, an applicant must demonstrate:

(i) A prima facie case with a probability of success;

(ii) That they will suffer irreparable injury which cannot be  adequately compensated by an award of damages; and

(iii) If the court is in doubt, it will decide the application on the  balance of convenience.

81.   On whether the Plaintiff’s application reveal a prima facie case. The Learned Counsel posited that they noted that a prima facie case is one which is more than arguable; it  must show a high probability of success at trial. In the present case, the  Plaintiff’s suit is premised on a challenge to a judicial sale conducted  pursuant to a valid decree of a court of concurrent jurisdiction (ELRC  Cause No. E032 of 2023). In the case of “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others  (Supra)”, the Court of Appeal was of the view that the three mandatory  elements must be surmounted sequentially.

82.   They submitted before this Court that its duty at this point is set out in the  case of “Mrao – Versus - First American Bank of Kenya Limited & 2 Others  (2003) eKLR”, 

“........ A prima facie case is one which, on the material presented in  court, a tribunal properly directing itself will conclude that there  exists a right which has apparently been infringed by the opposite  party as to call for an explanation or rebuttal from the respondent.”

83.   In essence, the court is supposed to determine whether a right has  apparently been infringed by the opposite party, as to call for an  explanation from the Defendant. They humbly submitted that the following detailed arguments to bring to the Court’s attention the intricacies and unique circumstances surrounding this case. In the present case, the Plaintiff’s suit was premised on a challenge to a  judicial sale conducted pursuant to a valid decree of a court of concurrent  jurisdiction (ELRC Case No. E032 of 2023). The 1st Defendant is a registered proprietor having acquired title through  a lawful execution process, under Section 26(1) of the Land Registration  Act. The 1st Defendant also has the lawful possession of the property. The Applicant, having failed to prove any fraud or misrepresentation  attributable to the 1st and 2nd Respondents, has failed to surmount the  first condition of interlocutory injunction.

84.   As it was held in “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others (Supra)”, a party must show a right, the infringement of which should  be restrained. Here, the Plaintiff’s right was extinguished upon the  lawful sale and registration of the transfer. The challenge to the title is based on execution grievances that should have been raised in the ELRC.  Consequently, no prima facie case exists.

85.   The Counsel also held that the Applicant guilty of latches. It is a trite equitable  principle that equity aids the vigilant and not the indolent. In this matter,  the Applicant waited until the execution of the decree was completed and  subsequent transfer to the 1st Defendant who has already developed the  property. The Applicant cannot now come to seek injunction against the  lawful proprietor of the suit property after it has acquired title and is  already in occupation of the suit property therefore granting the interim  orders amounts to evicting the registered owner. Consequently, the Plaintiff has no prima facie case against the 1st Defendant who is a lawful, registered proprietor of the suit property which  it bought in a lawful auction.

86.   On whether the Applicant was likely to suffer irreparable injury. The Learned Counsel invited the court to find wisdom in the High Court's decision in the case  of “Francis Muriithi Ndirangu – Versus - Ruth Wanjiku Nderitu (2016) eKLR”. The  court held as follows:

87.   The second test for determination is whether the applicant will suffer  irreparable loss. The following paragraph in Halsbury’s Laws of England [8] is instructive. It reads:-

“It is the very first principle of injunction law that, prima facie, the  court will not grant an injunction to restrain an actionable wrong for  which damages are the proper remedy. Where the court interferes by  way of an injunction to prevent an injury in respect of which there is  a legal remedy, it does so upon two distinct grounds: first that the  injury is irreparable, and second, that it is continuous. By the term  irreparable injury is meant injury which is substantial and could  never be adequately remedied or atoned for by damages, not injury  which cannot possibly be repaired, and the fact that the plaintiff may  have a right to recover damages is no objection to the exercise of the  jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of  compensation in damages, an injunction may be granted, if the act in  respect of which relief is sought is likely to destroy the subject matter  in question”.

88.   The Applicant contended that they stand to suffer irreparable harm of  injunctive relief is not granted. However, he submitted that the Plaintiff stood  to suffer no harm, let alone harm that is irreparable since its right on the  suit property no longer exist. It was a well-established legal principle that the grant of injunctive relief  necessitates a demonstration by the applicant of a real and imminent risk  of irreparable harm. A harm that cannot be adequately compensated by  monetary damages. The substratum of this entire dispute is a monetary decree of a sum of Kenya Shillings Thirty Two Million Eight Seventy Two Thousand and Twenty For and Thirty Three cents (Kshs.  32,872,024.33/=). The Plaintiff’s grievance is essentially the  ‘undervaluation’ of the property. This is a purely commercial loss that is  quantifiable in monetary terms and the difference is in monetary terms. In  any event, the Plaintiff has not even demonstrated how it will settle the  balance of decretal sums, which is still pending execution. The  Plaintiff/Applicant is still indebted to the decree holder even after the sale  of the impugned property.

89.   According to the Learned Counsel, the Applicant’s fears of irreparable harm are unfounded, as any financial  losses they may incur could be effectively addressed through a judgment for  damages. Therefore, the issuance of an injunction was not only unnecessary  but also inappropriate in light of the availability of an adequate alternative  remedy. In light of these considerations, the Counsel respectfully urged the Court to carefully  assess the lack of demonstrated harm and, consequently, overlook the  necessity of injunctive relief in this matter.

90.   On where the balance of convenience tilted. The Learned Counsel submitted that the High Court, at one point, termed this element the balance of  inconvenience. They referred to the case of “Bryan Chebii Kipkoech – Versus -  Barnabas Tuitoek Bargoria & Another (2019) eKLR”, where the court  pronounced itself as follows:

“....... Although it is called the balance of convenience, it is really  the balance of inconvenience, and it is for the Plaintiffs to show that the inconvenience caused to them would be greater than that which  may be caused to the Defendants. Should the convenience be equal, it is the Plaintiffs who suffer. In other words, the plaintiffs have to  show that the comparative mischief from the inconvenience which is  likely to arise from withholding the injunction would be greater than  that which is likely to arise from granting it.”

91.   According to the Counsel, the Plaintiff/Applicant had failed to demonstrate the inconvenience  caused to them. The 1st Respondent was a bona fide purchaser for value. The  balance of convenience tilted heavily against granting orders that would  disrupt a lawful owner from managing their property, especially when the  Plaintiff’s own negligence in failing to satisfy the ELRC decree which led to  the sale.

92.   The Learned Counsel submitted that the Applicant was inviting the Court to grant a negative  injunction, to remove the 1st Respondent from lawful possession of its  property before the full trial. The Learned Counsel urged the Court to reject such an invitation  as it would result in unlawful deprivation of right to peaceful enjoyment of  property. Again, the Applicant’s claim is for alleged undervaluation of the suit  property and the balance could be addressed on a full trial and compensated  by monetary damages. Thus, the balance of convenience lied in favor of  denying the injunction.

93.   To grant an injunction and further, to grant the ‘draconian’ relief of police  assistance, would be to punish a lawful purchaser and reward a Judgment Debtor who failed to satisfy a decree for nearly two years. The 1st and 2nd Respondents stood to lose more if their right to enjoy their property was  curtailed than the Plaintiff stood to gain by delaying the inevitable  conclusion of an execution process. In summary, the potential harm to the 1st and 2nd Respondents resulting  from the grant of these orders far outweighs the speculative and  compensable harm alleged by the Applicant. Therefore, in the interest of  fairness and practicality, the balance of convenience strongly favors the  denial of the Applicant's application.

94.   The Plaintiff sought police assistance to enforce an Ex - Parte interim order.  They submitted that police assistance are an extraordinary relief that should only  be granted where there was clear evidence of a breach of peace or willful  defiance of a court order. In this case, the 1st and 2nd Defendants were in lawful possession. Seeking  police assistance was an attempt by the Plaintiff to use the security  apparatus of the state to carry out a ‘self-help’ eviction of a registered  owner, which iwas a gross abuse of the court process. In light of these considerations, we respectfully urge this Honorable Court  to exercise its discretion judiciously and deny the application for injunctive  orders. Doing so will not only align with the principles of fairness but would  also prevent any unintended consequences that may arise from hastily  granted injunctive relief.

95.   They trusted that the Court would give due regard to the nuanced circumstances  of this case and make a well-informed decision that upholds the principles  of justice by dismissing the Application dated 19th February, 2026 with  cost. 

96.   In conclusion and based on the foregoing, the Learned Counsel submitted that the Preliminary Objection is dispositive of the entire suit. Where a court  lacks jurisdiction, the only lawful course of action was to strike out the  matter and the Preliminary Objection dated 10th March, 2026 be upheld. The Plaintiff’s Suit and the Notice of Motion application dated 29th January, 2026 and  19th February,  2026 be struck out for want of jurisdiction. Costs of the Suit and the Application be awarded to the 1st and 2nd Respondents.

 

IX.   Analysis and Determination

97.   The Honourable Court carefully read and considered the three ( 3 ) Notice of Motion applications dated 28th January, 2026, 19th February, 2026 and 24th April, 2026 respectively filed by the Plaintiff/Applicant, Sucham Investments Limited, the Notice of Preliminary Objection dated 10th March, 2026 filed by the 1st and 2nd Defendants/Respondents, Genesis Investments Limited and the First Avenue Investments LLC, and the Replying Affidavit sworn on May, 2026 by Ahmed Amer Omar Saleh, the 1st and 2nd Defendants/ Respondents’ and the one dated 3rd June, 2026 by Peter Kinyua, the 5th Defendant/Respondent. The Court also considered the Supporting Affidavit sworn by Charanjit Singh Hayer, together with the annexures thereto, the objections raised by the Respondents, and the relevant statutory provisions and authorities cited. In order to arrive at an informed decision, the Court framed the following seven ( 7 ) salient issues for its determination: -

a)   Whether the Plaintiff/Applicant has demonstrated sufficient proprietary interest and legal stake in Title Numbers C.R. 17508 (L.R. No. 13443) and C.R. 18325 (L.R. No. 13442) to warrant preservation of the Suit Properties pending trial.

b)   Whether the Preliminary Objection dated 10th March, 2026 by the 1st and 2nd Defendants is merited, particularly on the basis of Section 34 of the Civil Procedure Act, Cap. 21, Res Judicata, functus officio, and the jurisdictional limits of this Honourable Court vis-à-vis the Employment and Labour Relations Court.

c)   Whether the Replying Affidavit sworn by Peter Kinyua establishes that the execution process culminating in the auction of the Suit Properties was conducted in strict compliance with Order 22 Rules 68 – 80 of the Civil Procedure Rules, 2010, and whether the Plaintiff’s challenge is extinguished by prior litigation in ELRC Cause No. E032 of 2023 and Mombasa ELC No. E132 of 2025.

d)   Whether this Honourable Court, in exercise of its jurisdiction under Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, No. 19 of 2011 can properly entertain factual disputes relating to ownership of land allegedly acquired through execution, or whether such matters fall exclusively within the supervisory jurisdiction of the ELRC.

e)   Whether the balance of convenience and the Overriding Objective under the provision of Sections 1A, 1B, 3, & 3A of the Civil Procedure Act, Cap. 21  favour preservation of the Suit Properties through injunctive and inhibitory orders, or whether such relief would amount to unlawful deprivation of rights of a registered proprietor under Section 26(1) of the Land Registration Act, No. 3 of 2012.

f)   Whether the 1st and 2nd Defendants were in contempt of Court orders issued on 29th January, 2026 and 29th April, 2026 respectively.

g)   Who ought to bear the costs of the applications dated 28th January, 2026, 19th February, 2026, and 24th April, 2026 and the Notice of Preliminary Objection dated 10th March, 2026.

 

 

 

 

ISSUE No. a).          Whether the Plaintiff/Applicant has demonstrated sufficient proprietary interest and legal stake in Title Numbers C.R. 17508 (L.R. No. 13443) and C.R. 18325 (L.R. No. 13442) to warrant preservation of the Suit Properties pending trial.

98.   Under this sub‑title, the main issue here is whether the Plaintiff/Applicant has demonstrated sufficient proprietary interest and legal stake in Title Numbers C.R. 17508 (L.R. No. 13443) and C.R. 18325 (L.R. No. 13442) to warrant preservation of the Suit Properties pending trial.

99.   The Plaintiff/Applicant asserts that it is the absolute and indefeasible registered proprietor of the Suit Properties, having lawfully acquired them in the year 2003 through duly registered transfers under the Land Registration Act, No. 3 of 2012. It relies on title documents annexed to the Supporting Affidavit of Charanjit Singh Hayer, as well as prohibitory orders issued by the Employment and Labour Relations Court (ELRC) on 8th August, 2025, which were duly registered against the titles on 5th September, 2025. The Plaintiff argues that any subsequent sale or transfer was undertaken in blatant contempt of those subsisting prohibitory orders, and therefore its proprietary interest remains intact and deserving of preservation.

100.   The 1st and 2nd Defendants, through their Director’s Replying Affidavit, plead that they are the lawful registered proprietors of the Suit Properties, having purchased them at a judicial auction conducted on 7th October, 2025 pursuant to the ELRC decree in Cause No. E032 of 2023. They annexed Certificates of Sale and transfers registered in their favour, and argue that under the provision of Section 26(1) of the Land Registration Act, their titles are prima facie evidence of absolute ownership unless impeached for fraud or illegality. They further contend that the Plaintiff’s proprietary interest was extinguished upon execution of the decree and registration of transfer, and that the Plaintiff’s remedy, if any, lies in challenging the execution process before the ELRC under the provision of Section 34 of the Civil Procedure Act.

101.   The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law.  Which provides as follows:-

Order 40, Rule 1

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 the 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.

102.   Fundamentally, the principles applicable in an application for an injunction were laid out in the celebrated case of “Giella – Versus - Cassman Brown & Co Limited (Supra)”, where it was stated: -

“First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

103.   The three conditions set out in “Giella (supra)”, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR”: -

“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent.  It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.  See Kenya Commercial Finance Co. Limited -  Versus -  Afraha Education Society [2001] Vol. 1 EA 86.  If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable.  In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage.  If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.  The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”.

104.   In dealing with the first condition of “prima facie” case, the Honorable Court guided by the definition melted down in the famous case “MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125” of: -

“So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter” 

 

105.   Applying these principles to the present case, the Plaintiff asserts that it is the absolute registered proprietor of the suit properties since the year 2003. Prohibitory orders were issued by the ELRC on 8th August, 2025 and registered against the titles on 5th September, 2025, barring any sale or transfer. The alleged auction sale of 7th October, 2025 was conducted notwithstanding those orders, without proclamation, valuation, or advertisement as required under the Auctioneers Act and Order 22 Civil Procedure Rules. The purchaser, Genesis Investments Limited, was incorporated on 27th October,  2025, after the alleged auction date, raising questions of legal capacity to transact. The sale price of a sum of Kenya Shillings Six Million (Kshs. 600, 000, 000/=) was grossly disproportionate to the market value of a sum of Kenya Shillings One Billion Eight Hundred Million (Kshs. 1, 800, 000, 000/=), amounting to confiscation rather than lawful execution. The beneficial ownership of Genesis Investments traces to a foreign entity, First Avenue Investments LLC, raising constitutional questions under the provision of Article 65 of the Constitution on non‑citizen landholding.

106.   The 1st and 2nd Defendants, through their Director’s Replying Affidavit pleaded that they were the lawful registered proprietors, having acquired title through a judicial sale sanctioned by the ELRC. Certificates of Sale and transfers were duly issued, and under the provision of Section 26 (1) of the Land Registration Act, their titles are indefeasible unless impeached for fraud or illegality. The Plaintiff’s proprietary interest was extinguished upon registration of transfer, and any grievances about execution should have been raised before the ELRC under the provision of Section 34 of the Civil Procedure Act. The Plaintiff is guilty of material non‑disclosure and forum shopping, having filed similar applications in Mombasa ELC and ELRC which were declined. The Plaintiff’s claim is essentially commercial, revolving around alleged undervaluation, which can be compensated by damages.

107.   The Court must determine whether the Plaintiff has shown a right apparently infringed. In line with “Mrao Ltd – Versus -  First American Bank of Kenya Ltd [supra]”, a prima facie case requires demonstration of infringement of a right. The Plaintiff’s evidence of prohibitory orders, corporate incapacity of the purchaser, and gross undervaluation raises serious questions of legality and fraud. These are not minor procedural defects but substantial irregularities that go to the root of the transaction. While the Defendants rely on the sanctity of title under Section 26(1) Land Registration Act, that protection is expressly subject to challenge on grounds of fraud, misrepresentation, or illegality. The Plaintiff has placed sufficient material before the Court to show that its proprietary rights are directly threatened and that the alleged transfer is tainted with irregularities. 

108.   In the case of “Mbuthia – Versus -  Jimba credit Corporation Ltd 988 KLR 1”, the court held that;

“In an application for interlocutory injunctions, the court is not required to make final findings of contested facts and law and the court should only weigh the relative strength of the party’s cases.”

109.   Similarly, in the case of “Edwin Kamau Muniu – Versus -  Barclays Bank of Kenya Ltd” the court held that;

“In an interlocutory application to determine the very issues which will be canvassed at the trial with finality All the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.”

110.   Accordingly, I am persuaded that the Plaintiff has established a prima facie case with a probability of success. 

111.   The second principle in “Giella – Versus -  Cassman Brown & Co. Ltd (Supra)” requires the applicant to demonstrate that they stand to suffer irreparable injury which cannot be adequately compensated by an award of damages if the injunction is withheld. With regards to the second limb of the Court of Appeal in “Nguruman Limited (supra)”, held that:- 

“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury.  Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant.  The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages.  An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”

112.   Having established that the Plaintiff has demonstrated a prima facie case, the Court must now consider whether it stands to suffer irreparable injury if the injunction is not granted. The Plaintiff has shown that the Suit Properties comprise a fully developed hospitality establishment, Amani Tiwi Beach Resort, with substantial goodwill and commercial value. Eviction or interference at this stage would deprive the Plaintiff of quiet enjoyment and expose it to loss that cannot be easily quantified.

113.   As held in “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others [supra]”, irreparable injury refers to harm that is substantial and cannot be adequately remedied by damages. The Plaintiff’s proprietary rights, once interfered with, cannot be restored by mere monetary compensation.. The judicial decision of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (2018) eKLR” provides an explanation for what is meant by irreparable injury and it states;

“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.”

114.   Further in the case of “Kenya Breweries Ltd & Another – Versus - Washington Okeyo [2002] eKLR”, the Court of Appeal held that where a party’s proprietary rights are threatened, damages are not always an adequate remedy. Proprietary rights under Article 40 of the Constitution of Kenya, 2010 are fundamental, and their violation cannot be vindicated by monetary compensation alone.

115.   In “Olympic Sports House Ltd – Versus - School Equipment Centre Ltd [2012] eKLR”, the Court held that interference with possession and business operations constitutes irreparable harm. The Plaintiff has demonstrated that the Defendants’ continued occupation and construction activities threaten to permanently alter the character of the resort, dissipate its commercial identity, and undermine its goodwill. Quite clearly, the Applicant would not be adequately compensated through damages, given that the land and resort are unique assets allegedly acquired through a process tainted with illegality. Preservation of the Suit Properties is necessary to ensure that the substantive issues are determined at full trial without rendering the proceedings nugatory. The Applicant has therefore satisfied the second condition as laid down in “Giella’s case”.

116.   Thirdly, the Applicant has to demonstrate that the balance of convenience tilts in his favour.  In the case of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (Supra)” which defined the concept of balance of convenience as:

“The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.

In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”.

117.   In the case of “Paul Gitonga Wanjau – Versus -  Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR”, the court dealing with the issue of balance of convenience expressed itself thus:-

“Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which  the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.”

118.   In this case, the Plaintiff has demonstrated that the Suit Properties are unique beachfront parcels developed into a hospitality establishment with substantial goodwill. Evicting the Plaintiff or permitting further interference at this interlocutory stage would occasion greater hardship than maintaining the status quo until the substantive issues are resolved. If the injunction is not granted and the Defendants continue to interfere with the property, the Plaintiff risks permanent dispossession, waste, and alienation of its land. Conversely, if the injunction is granted and the Defendants are later found to have valid claims, they will only have been delayed in exercising their rights, which can be compensated by damages.

119.   Therefore, the balance of convenience tilts in favour of the Plaintiff. Preserving the Plaintiff’s possession and restraining further interference ensures that the subject matter of the suit is not wasted or alienated before trial. The decision of “Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR” where the learned judge offered further elaboration on what is meant by “balance of convenience” and stated; -

“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”

120.   The balance of convenience lies in favour of granting the injunction and maintaining the status quo pending the hearing and determination of the suit, I am convinced that there is a lower risk in granting orders of temporary injunction than not granting him, as I wait to hear the suit on its merits during a full trial. This is especially so because I have not had the opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the claim of the Applicant and it will be in the interest of both the Applicant and the Respondents that the suit property is preserved until the hearing and determination of the suit.

121.   In the case of:- “Robert Mugo wa Karanja – Versus -  Ecobank (Kenya) Limited & Another [2019) eKLR” where the court in deciding on an injunction application stated;

“circumstances for consideration before granting a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”

122.   For these reasons, I am convinced that if orders of temporary injunction are not granted in this suit, the property in dispute might be in danger of being dealt in the manner set out in the application and apprehended by the Plaintiff/Applicant.  In view of the foregoing, I find that the Plaintiff has met the criteria for grant of orders of temporary injunction.

 

ISSUE No. b).         Whether the Preliminary Objection dated 10th March, 2026 by the 1st and 2nd Defendants is merited, particularly on the basis of Section 34 of the Civil Procedure Act, Cap. 21 Res judicata, functus officio, and the jurisdictional limits of this Honourable Court vis-à-vis the Employment and Labour Relations Court.

123.   Under this Sub – heading, the Honourable Court will decipher on the substratum of the matter which is whether the Preliminary Objection dated 10th March,  2026 by the 1st and 2nd Defendants is merited. Particularly, this is  on the basis of the provision of Section 34 of the Civil Procedure Act, Cap. 21, res judicata, functus officio, and the jurisdictional limits of this Honourable Court vis‑à‑vis that of the Employment and Labour Relations Court.

124.   The 1st and 2nd Defendants, through their Preliminary Objection and submissions, contend that this Honourable Court lacks jurisdiction to entertain the present suit. In their objection, they have relied heavily on the provisions of Section 34(1) of the Civil Procedure Act, which provides that all questions arising between parties to a suit in which a decree was passed, and relating to execution, discharge, or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. They argue that since the decree was issued by the Employment and Labour Relations Court (ELRC) in Cause No. E032 of 2023, any grievances regarding execution ought to have been raised before that court. They further submitted that the Environment and Land Court (ELC) and ELRC are courts of equal status under the provision of Article 162(2) of the Constitution, and one cannot sit on appeal over the other or supervise its execution processes.

125.   The Defendants also invoke the Doctrines of res judicata and functus officio, pointing out that the Plaintiff had previously filed Mombasa ELC Suit No. E132 of 2025 and applications before the ELRC, which were declined. They argued that the Plaintiff was guilty of forum shopping, material nondisclosure, and abuse of court process.

126.   The Plaintiff opposed the Preliminary Objection, arguing that the issues raised go beyond mere execution. It contends that the alleged sale was conducted notwithstanding subsisting prohibitory orders, without compliance with statutory safeguards under the Auctioneers Act and Civil Procedure Rules, and in favour of a company that was not yet incorporated. The Plaintiff submits that these allegations raise questions of fraud, illegality, and constitutional violations, which fall squarely within the jurisdiction of the Environment and Land Court, under the provision of Section 13 of the Environment and Land Court Act and Article 162(2)(b) of the Constitution.

127.   In determining this instant  Notice of Preliminary Objection, the Court will first consider what amounts to a Preliminary  Objection and then Juxtapose the said description herein and come up with a finding on whether what has been raised herein fits the said description.

128.   According to the Black Law Dictionary a Preliminary Objection is defined as being:

“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”

129.   Additionally, it holds that a Preliminary Objection is an objection that if upheld would render further proceedings before the tribunal impossible or unnecessary. Courts have various defined Preliminary objection as one that consists of a point which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary point my dispose of the suit.

130.   The above legal preposition has been made graphically clear in the now famous case of “Mukisa Biscuits – Versus - Westend Distributor Ltd [1969] EA 696”, the court observed that: -

“A Preliminary Objection is in the nature of what used to be a demurrer.  It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.  It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.  The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue.”

131.   This statement of the law has been echoed time and again by the courts: see for example, “Oraro – Versus - Mbaja [2007] KLR 141”. The same position was held in the case of “Nitin Properties Ltd – Versus -  Jagjit S. Kalsi & another  Court of Appeal No. 132 of 1989[1995-1998] 2EA 257”  where the Court held that;

“A preliminary Objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any facts has to be ascertained or if what is sought is the exercise of Judicial discretion.”

132.   Similarly in the case of “United Insurance Company LTD – Versus  - Scholastica A Odera Kisumu HCC Appeal No. 6 of 2005(2005) LLR 7396”, the Court held that;

“A preliminary Objection must be based on a point of law which is clear and beyond any doubt and Preliminary Objection which is based on facts which are disputed cannot be used to determine the whole matter as the facts must be precise and clear to enable the Court to say the facts are contested or disputed .”

133.   Therefore from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of  “In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that;

“A Preliminary Objection cannot be raised if any facts has to be ascertained.”

134.   I have further relied on the decision of “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR” as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia:-

(i) A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.

(ii) A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and

(iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.

135.   The Preliminary Objection raises weighty jurisdictional questions. The provision of Section 34 of the Civil Procedure Act provides as follows :

34. Questions to be determined by court executing decree

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.

(2) The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit, or a suit as a proceeding, and may, if necessary, order payment of any additional court fees.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court.

Explanation. — For the purposes of this section, a plaintiff whose suit has been dismissed, and a defendant against whom a suit has been dismissed, are parties to the suit.

136.    It is trite law that jurisdiction is everything, and without it, the Court cannot take one more step in the case. In the celebrated case of “Owners of Motor Vessel ‘Lillian S’ – Versus - Caltex Oil (Kenya) Limited (Supra)”, the Court held that:

“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings…”

137.   Similarly, the Supreme Court in the case of “Samuel Kamau Macharia & Another – Versus - Kenya Commercial Bank Limited & 2 Others [2012] eKLR” pronounced itself thus:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. …. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation….”

138.   It is also trite that jurisdiction is derived from the Constitution and statute. The jurisdiction of this Court is derived from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The jurisdiction of the ELC Court is set out in Section 13 of the ELC Act as follows:

(1)   The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.

(2)   In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—

a.   relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;

b.   relating to compulsory acquisition of land;

c.   relating to land administration and management;

d.   relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and

e.   any other dispute relating to the environment and land

139.   Article 162 (2) (b) of the Constitution provides that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land, and shall determine the jurisdiction and functions of these courts. These courts are Employment and Labour Relations Court and the Environment and Land Court.

140.   It is true that Section 34 Civil Procedure Act, Cap. 21 directs execution disputes to the court that issued the decree. However, the Plaintiff’s claim is not limited to execution mechanics; it alleges fraud, illegality, corporate incapacity, and violation of constitutional restrictions on land ownership. These are matters that transcend execution and fall within the ELC’s jurisdiction to determine disputes relating to Use, Occupation and title of land and environment. 

141.   Further, on the doctrine of res judicata, I dare state as follows that the substantive law on Res Judicata is found under the provision of Section 7 of the Civil Procedure Act Cap. 21 which provides that:

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”

142.   The Black’s law Dictionary 10th Edition defines “res judicata” as:-

“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”

143.   A person may not commence more than one action in respect of the same or a substantially similar cause of action and the Court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions. In order therefore to decide as to whether an issue in a subsequent suit is res judicata, a court of law should always look at the Decision claimed to have settled the issues in question and the entire suit and the instant suit to ascertain;

i)   what issues were really determined in the previous suit;

ii)   whether they are the same in the subsequent suit and were covered by the Decision.

iii)   whether the parties are the same or are litigating under the same Title and that the previous suit was determined by a court of competent jurisdiction

144.   Kuloba J., in the case of “Njangu – Versus - Wambugu and another Nairobi HCCC No.2340 of 1991 (unreported)”, held that:

‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..”

145.   In the Court of Appeal case of “Siri Ram Kaura – Versus – M.J.E. Morgan, CA 71/1960 (1961) EA 462” the then EACA stated that: -

“The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata...

The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact.  The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before ...

The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.

It is therefore not permissible for parties to evade the application of Res judicata by simply conjuring up parties or issues with a view to giving the case a different complexion from the one that was given in the former suit.”

146.   On the issue of functus officio, the doctrine was considered by the Court of Appeal in “Telkom Kenya limited – Versus -  John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) (2014) eKLR”, where the court held that;

“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon…

The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions...”

147.   The Supreme Court of Kenya in the case of “Raila Odinga & 2 Others – Versus - Independent Electoral & Boundaries Commission & 3 Others (2013) eKLR”, cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads:-

“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”

148.   The doctrines of res judicata and functus officio require that the matter be conclusively determined in a previous suit. While the Plaintiff did file Mombasa ELC Suit No. E132 of 2025 and applications before the ELRC, those proceedings were either withdrawn or declined at interlocutory stage. The substantive issues of fraud and illegality have not been conclusively adjudicated. (Emphasis mine)

149.   The Court must therefore distinguish between pure execution disputes, which fall under the provision of Section 34 Civil Procedure Act, and allegations of fraud and illegality in land transfers, which fall within the ELC’s jurisdiction. The Plaintiff’s pleadings disclose arguable issues of fraud and constitutional violations that cannot be summarily dismissed as execution grievances.

150.   The Court finds that the Preliminary Objection dated 10th March 2026 is not merited. While Section 34 CPA limits jurisdiction over execution disputes, the Plaintiff’s case raises broader questions of fraud, illegality, and constitutional compliance which fall within the jurisdiction of the Environment and Land Court. The doctrines of res judicata and functus officio do not apply, as the substantive issues have not been conclusively determined in prior proceedings.

151.   Accordingly, the Preliminary Objection is dismissed, and the suit shall proceed to full hearing on its merits.

 

 

ISSUE No. c).          Whether the Replying Affidavit sworn by Peter Kinyua establishes that the execution process culminating in the auction of the Suit Properties was conducted in strict compliance with Order 22 Rules 68 – 80 of the Civil Procedure Rules, 2010, and whether the Plaintiff’s challenge is extinguished by prior litigation in ELRC Cause No. E032 of 2023 and Mombasa ELC No. E132 of 2025.

152.   Under this sub‑title, the main issue here is whether the Replying Affidavit sworn by Peter Kinyua establishes that the execution process culminating in the auction of the Suit Properties was conducted in strict compliance with Order 22 Rules 68–80 of the Civil Procedure Rules, 2010, and whether the Plaintiff’s challenge is extinguished by prior litigation in ELRC Cause No. E032 of 2023 and Mombasa ELC No. E132 of 2025.

153.   The Court shall further examine the averments contained in the Replying Affidavit sworn by Peter Kinyua, the 5th Defendant/Respondent, to determine whether the execution process culminating in the auction of the Suit Properties was conducted in strict compliance with the Civil Procedure Rules, and whether the Plaintiff’s challenge is barred by prior litigation.

154.   The Deponent in the 5th Defendant’s affidavit averred that warrants of attachment and sale were duly issued by the Employment and Labour Relations Court (ELRC) in Cause No. E032 of 2023, authorising the attachment and sale of the Plaintiff’s properties to satisfy the decretal sum of Kenya Shillings Thirty Two Million Eight Seventy Two and Twenty Four and Thirty Two cents (Kshs. 32,872,024.32/=). A consent order dated 30th September, 2025 was recorded between the parties, setting out modalities of sale. In compliance with that order, a public auction was conducted on 7th October, 2025, at which Genesis Investments Limited was declared the highest bidder. Certificates of Sale were issued accordingly.

155.   The Counsel advised him that the process was undertaken in strict compliance with Order 22 Rules 68–80 of the Civil Procedure Rules, 2010, which govern sale of immovable property in execution of decrees. The Plaintiff fully participated in the process and cannot feign ignorance. The Plaintiff’s challenge is barred by the provision of Section 34 of the Civil Procedure Act, which requires all questions relating to execution to be determined by the court executing the decree. The Plaintiff had already litigated similar issues in ELRC Cause No. E032 of 2023 and Mombasa ELC No. E132 of 2025, which were either declined or withdrawn, hence the present suit is an abuse of process.

156.   From the foregoing, it will be seen that all questions relating to execution or satisfaction or a decree are supposed to be determined by the court executing the decree and not through a separate suit. Indeed, execution of decrees is elaborated in Order 22 of the Civil Procedure Rules, and it is the court that ordered execution of the decree by attachment and sale of immovable property, that is supposed to make orders relating to the such sale. As pointed out, Section 34 requires that the issues relating to execution of a decree be dealt with by the court which issued the decree, and this should be within the very suit where the execution of the decree was ordered. The filing of a separate suit to enforce a decree is not contemplated.

157.   My holding herein should not be deemed as a ruling prescribing which court between the Employment and Labour Relations Court and the Environment and Land Court have jurisdiction over land. This ruling should be seen in light of the confines of Section 34 of the Civil Procedure Act, and Order 22 of the Civil Procedure Rules, on matters relating to execution of decrees.

158.   The Replying Affidavit asserts compliance with Order 22 Rules 68–80 Civil Procedure Rules. However, the Plaintiff has raised serious allegations of non‑compliance, including lack of proclamation of attachment, notification of sale, valuation, or advertisement; Sale conducted notwithstanding subsisting prohibitory orders registered against the titles; Certificates of Sale issued to a company (Genesis Investments Limited) incorporated after the auction date and gross undervaluation of the properties compared to professional valuation reports (Knight Frank valuation of Kenya Shillings One Billion Eight Hundred Thousand Million (Kshs. 1, 800, 000, 000/=) versus sale price of a sum of Kenya Shillings Six Hundred Million (Kshs. 600, 000, 000/=).

159.   These allegations, if proved, would amount to substantial irregularities inconsistent with the mandatory safeguards under Order 22. The Replying Affidavit, while asserting compliance, does not annex evidence of proclamation, valuation, or advertisement, which are critical steps in execution against immovable property.

160.   On the question of prior litigation, it is true that the Plaintiff raised similar grievances before the ELRC and in Mombasa ELC No. E132 of 2025. However, those proceedings did not conclusively determine the substantive issues of fraud, illegality, and constitutional restrictions. The doctrine of res judicata requires final determination on merits, which is absent here. Withdrawal of a suit or dismissal of interlocutory applications does not extinguish substantive claims of fraud or illegality. The Court must therefore distinguish between execution grievances properly addressed in the ELRC and allegations of fraud and illegality in land transfers, which fall within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act.

161.   The Replying Affidavit sworn by Peter Kinyua does not conclusively establish strict compliance with Order 22 Rules 68–80 Civil Procedure Rules, 2010. The absence of evidence of proclamation, valuation, and advertisement raises serious doubts. Further, the Plaintiff’s challenge is not extinguished by prior litigation, as the substantive issues of fraud and illegality have not been conclusively adjudicated.

162.   Accordingly, the Court finds that the Replying Affidavit does not bar the Plaintiff’s claim, and the issues raised warrant full trial on their merits.

 

 

 

ISSUE No. d).         Whether this Honourable Court, in exercise of its jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011 can properly entertain factual disputes relating to ownership of land allegedly acquired through execution, or whether such matters fall exclusively within the supervisory jurisdiction of the ELRC.

163.   Under this sub‑title, the main issue here is whether the Environment and Land Court (ELC) has jurisdiction to determine factual disputes relating to ownership of land allegedly acquired through execution of a decree of the Employment and Labour Relations Court (ELRC), or whether such matters fall exclusively within the supervisory jurisdiction of the ELRC. 

164.   The 1st and 2nd Defendants argue that the substratum of the Plaintiff’s claim is a challenge to the execution of a decree issued in ELRC Cause No. E032 of 2023. They rely on Section 34(1) of the Civil Procedure Act, which provides that all questions relating to execution, discharge, or satisfaction of a decree must be determined by the court executing the decree. They submit that the ELC, being a court of equal status to the ELRC under Article 162(2) of the Constitution, cannot sit on appeal over or supervise the execution process of the ELRC. 

165.   The Plaintiff contends that its claim goes beyond execution mechanics. It alleges that the Suit Properties were sold notwithstanding subsisting prohibitory orders, without compliance with statutory safeguards under the Auctioneers Act and Civil Procedure Rules, and in favour of a company that was not yet incorporated. It further raises constitutional questions under Article 65 of the Constitution regarding foreign ownership of land. The Plaintiff submits that these issues amount to fraud, illegality, and violation of constitutional rights, which fall squarely within the jurisdiction of the ELC under Section 13 of the Environment and Land Court Act, 2011.

166.   The Court must distinguish between pure execution disputes and factual disputes relating to ownership and title to land. Section 34 Civil Procedure Act clearly bars collateral challenges to execution in a separate suit. However, where allegations of fraud, illegality, or constitutional violations are raised, the jurisdiction of the ELC is engaged. The Plaintiff’s claim is not limited to execution mechanics; it raises questions of:

d.   Sale despite prohibitory orders registered against the titles.

e.   Lack of compliance with mandatory safeguards under Order 22 CPR and Auctioneers Act.

f.   Corporate incapacity of the purchaser (Genesis Investments Limited incorporated after the auction date).

g.   Constitutional restrictions on foreign ownership under Article 65

167.   These are factual disputes relating to ownership and title to land, which fall within the ELC’s jurisdiction under Article 162(2)(b) of the Constitution and Section 13 ELC Act. The ELRC’s supervisory jurisdiction over execution does not extend to adjudicating fraud or constitutional violations in land transfers.

168.   This Honourable Court finds that while the provision of Section 34 of Civil Procedure Act, Cap. 21 limits jurisdiction over execution disputes, the Plaintiff’s claim raises broader issues of fraud, illegality, and constitutional compliance which fall within the jurisdiction of the Environment and Land Court. The ELC is therefore properly seized of the matter, and the challenge cannot be dismissed as falling exclusively within the supervisory jurisdiction of the ELRC. 

169.   Accordingly, the Court holds that it has jurisdiction to entertain factual disputes relating to ownership of the Suit Properties allegedly acquired through execution, and the matter shall proceed to full trial on its merits.

ISSUE No. e).          Whether the balance of convenience and the overriding objective under the provision of Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Cap. 21 favour preservation of the Suit Properties through injunctive and inhibitory orders, or whether such relief would amount to unlawful deprivation of rights of a registered proprietor under Section 26(1) of the Land Registration Act No. 3 of 2012

170.   Under this sub‑title, the main issue here is whether the balance of convenience tilts in favour of preserving the Suit Properties pending trial, or whether granting injunctive and inhibitory orders would unlawfully deprive the Defendants of their rights as registered proprietors under the provision of Section 26(1) of the Land Registration Act, 2012.

171.   The Plaintiff argues that the balance of convenience lies in favour of preserving the Suit Properties. It submits that unless restrained, the Defendants will continue to occupy, alter, and possibly alienate the land, thereby rendering the suit nugatory. The Plaintiff emphasizes that the overriding objective under Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Court Act, No. 19 of 2011  requires the Court to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Preservation of the properties ensures that the substratum of the suit remains intact for determination on merits.

172.   The Plaintiff further contends that the Suit Properties are unique beachfront parcels developed into a hospitality establishment with substantial goodwill, and that their alienation or alteration would cause irreparable prejudice to its proprietary rights. It insists that damages cannot adequately compensate for the loss of a resort business, its goodwill, and its environmental and commercial value.

173.   The Defendants contend that they are the registered proprietors pursuant to certificates of sale and transfers issued after execution of the ELRC decree. They rely on Section 26(1) of the Land Registration Act, which provides that a certificate of title is prima facie evidence of ownership and is indefeasible unless impeached for fraud, misrepresentation, or illegality. They argue that restraining them from dealing with their property amounts to unlawful deprivation of rights and undermines the sanctity of title.

174.   They also submit that the Plaintiff’s grievances are essentially execution disputes, which should have been addressed before the ELRC under Section 34 of the Civil Procedure Act, and that the present suit amounts to forum shopping and abuse of process.

175.   Section 26(1) of the Land Registration Act, 2012 protects registered proprietors but allows impeachment of title on grounds of fraud, misrepresentation, or illegality while Sections 1A and 1B Civil Procedure Act enshrines the overriding objective of ensuring just, expeditious, and proportionate resolution of disputes. 

176.   The Plaintiff has demonstrated arguable grounds of fraud and illegality in the acquisition of the Suit Properties, including sale despite prohibitory orders, lack of statutory safeguards, and corporate incapacity of the purchaser. These allegations, if proved, would impeach the Defendants’ titles under Section 26(1) Land Registration Act. On the other hand, the Defendants’ rights as registered proprietors cannot be ignored. However, the law recognizes that title is not indefeasible where fraud or illegality is alleged. Preservation of the properties does not amount to unlawful deprivation but ensures that the dispute is resolved without rendering the proceedings nugatory.

177.   If the injunction is withheld, the Plaintiff risks permanent dispossession, waste, and alienation of its land. If the injunction is granted and the Defendants are later found to have valid claims, they will only have been delayed in exercising their rights, which can be compensated by damages. The comparative mischief is greater on the Plaintiff’s side. The overriding objective under Sections 1A and 1B CPA also requires the Court to ensure that disputes are resolved justly and proportionately. Preserving the Suit Properties maintains the status quo and prevents escalation of conflict, thereby facilitating expeditious determination of the substantive issues.

178.   The Court finds that the balance of convenience and the Overriding Objective under the provision of Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Cap. 21 favour preservation of the Suit Properties. Granting injunctive and inhibitory orders ensures that the subject matter of the suit is not wasted or alienated before trial. Accordingly, the Court holds that the balance of convenience tilts in favour of the Plaintiff, and preservation orders are justified pending determination of the suit.

ISSUE No. f).         Whether the 1st and 2nd Defendants were in contempt of Court orders issued on 29th January, 2026 and 29th April, 2026 respectively

179.   Under this sub‑title, the main issue here is whether the 1st and 2nd Defendants were in contempt of the Court Orders issued on 29th January 2026 and 29th April 2026. I now turn to the issue of contempt. Contempt is any conduct that despises the authority and dignity of the Court. The Black’s Law Dictionary 9th Edition defines Contempt as;

“The act or state of despising; conduct of being despised. Conduct that defies the authority of a court or legislature, because such conduct interferes with the administration of justice.”

180.   The legal framework on contempt is anchored on section 5 of the Judicature Act particularly under Act. That section confers jurisdiction on  superior courts to punish for contempt and uphold the dignity and authority of courts. Contempt of court is essentially defiance of the authority of the court.

181.   Section 29 of the Environment and Land Court Act provides as follows:

“Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.”

182.   Courts punish contempt of court to uphold the rule of law which is the cornerstone of any democratic state like ours. In the case of “Econet Wireless Kenya Limited – Versus -  Minister For Information and Communication of Kenya Authority [2005] eKLR”, the court stated as follows: -

“It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The Court will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. It is the plain and unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void.”

183.   In the Court of Appeal case of “Micheal Sistu Mwaura Kamau – Versus - Director of Public Prosecutions & 4 others [2018] eKLR” the court held as follows:-

“It is trite that to commit a person for contempt of court, the court must be satisfied that he has wilfully and deliberately disobeyed a court order that he was aware of…secondly, as this Court emphasized in Jihan Freighters Ltd – Versus - Hardware & General Stores Ltd and in AB & another – Versus - R B [2016] eKLR, to sustain committal for contempt of court, the order of the court that is alleged to have been deliberately disobeyed must be clear and precise so as to leave no doubt as to what a party was supposed to do or to refrain from doing. Lastly, the standard of proof in committal proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond reasonable doubt.”

184.   Similarly, in the case of “T.N Gadavarman Thiru Mulpad – Versus - Ashok Khot and anor [2005] 5 SCC”, the Supreme Court of India in emphasizing the dangers of disobeying court orders held as follows:

“Disobedience of this Court’s order strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. Hence, it is not only the third pillar but also the central pillar of the democratic State. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very corner stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. That is why it is imperative and invariable that Court’s orders are to be followed and complied with.”

185.   Civil contempt proceedings are quasi-criminal proceedings since the consequence thereof may result in deprivation of the liberty of a proven contemnor. Therefore, the standard of proof for contempt is higher than the standard of proof required in ordinary civil cases of the balance of probabilities, although the same is slightly below the standard of beyond reasonable doubt required in criminal cases. To prove contempt of a court order, an applicant ought to show  that there exists terms of a court order that are clear and unambiguous; that the respondent was aware of the clear terms of the order; and that the respondent wilfully disobeyed the terms of the order.

186.   Contempt proceedings are quasi-criminal and require strict proof of wilful disobedience (“Mutitika – Versus -  Baharini Farm Ltd [1985] KLR 229”). The Applicants have shown:

h.   Existence of clear Orders.

i.   Knowledge of the Orders by the Respondents.

j.   Acts of excavation contrary to the Orders.

187.   In the instant case, the Plaintiff asserts that despite clear injunctive orders restraining the Defendants from interfering with the Suit Properties, the Defendants continued to occupy, construct, and demolish structures thereon. The Plaintiff annexed photographs, survey reports, and witness accounts showing ongoing activities at Amani Tiwi Beach Resort. It argues that such conduct amounts to deliberate defiance of the Court’s authority, undermines the rule of law, and erodes the dignity of judicial orders.

188.   The Defendants counter that the orders were prohibitory in nature, restraining certain acts but not granting the Plaintiff vacant possession. They maintain that their continued occupation was consistent with their registered ownership and therefore not contemptuous. They further argue that the orders were obtained ex parte, lacked clarity, and that their activities were confined to a different parcel of land, thereby raising issues of boundary confusion.

189.   The orders of 29th January, 2026 and 29th April, 2026 were clear and precise, restraining interference with the Suit Properties. The Defendants were aware of these orders, having actively participated in proceedings, filed applications to set them aside, and consented to their preservation. Knowledge of the orders is therefore not in dispute. The Plaintiff has produced evidence of ongoing activities inconsistent with the orders. However, contempt requires proof of deliberate, willful disobedience. The Court must be satisfied that the activities complained of were directly contrary to the specific terms of the orders.

190.   The Defendants’ defence of vagueness and boundary confusion is weakened by their own participation in consents preserving the orders. Yet, the heightened standard of proof in contempt proceedings demands more than inference or suspicion. The evidence must demonstrate clear, unequivocal defiance. On the material before the Court, while there is evidence of occupation and activity, the Plaintiff has not discharged this burden to the required standard.

191.   The Court finds that the Plaintiff has not proved contempt to the requisite standard. The activities complained of, though inconsistent with the spirit of the injunction, do not amount to clear and deliberate defiance of the specific terms of the orders.

192.   Accordingly, the Court does not find the 1st and 2nd Defendants in contempt of the Court Orders issued on 29th January, 2026 and 29th April, 2026. Therefore, the Notice of Motion application seeking to cite them for contempt is dismissed.

ISSUE No g).          Who ought to bear the costs of the applications dated 28th January, 2026, 19th February, 2026, and 24th April, 2026 and the Notice of Preliminary Objection dated 10th March, 2026

193.   Under this sub‑title, the main issue here is who ought to bear the costs of the Notice of Motion applications dated 28th January ,2026, 19th February, 2026, and 24th April, 2026, together with the Notice of Preliminary Objection dated 10th March, 2026.

194.   It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The governing provision is the provision of Section 27(1) of the Civil Procedure Act, Cap. 21, which provides:

“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”

195.   Thus, while the general rule is that costs follow the event, the Court retains discretion to depart from this principle where justice so demands.

196.   This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus -  Nairobi City County Government [2018] eKLR” and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR”, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances.

197.   In the present matter, on the application dated 28th January, 2026, it sought for injunctive relief. The Court found merit in preserving the Suit Properties pending trial. Accordingly, the Plaintiff/Applicant succeeded, and costs should follow the event in its favour. The application dated 19th February, 2026 which was intertwined with the preservation orders and was similarly allowed. The Plaintiff demonstrated sufficient proprietary interest and irreparable harm. Costs therefore lie with the Defendants/Respondents.

198.   On the application dated 24th April, 2026 on contempt, the Court found that the Plaintiff had not discharged the burden of proof to the required standard. The contempt application was dismissed. In line with Section 27 Civil Procedure Act, Cap, 21 costs of this application should be borne by the Plaintiff/Applicant. Lastly on the Notice of Preliminary objection dated 10th March, 2026, the Defendants argued jurisdiction under the provision of Section 34 Civil Procedure Act, res judicata, and functus officio. The Court dismissed the Preliminary Objection, holding that the ELC has jurisdiction to entertain allegations of fraud and illegality in land transfers. Since the Defendants were unsuccessful, they must bear the costs of the Preliminary Objection.

199.   Accordingly, the Court orders that costs shall follow the events; the costs of the applications dated 28th January, 2026 and 19th February, 2026 shall be borne by the 1st and 2nd Defendants/ Respondents; the costs of the Application dated 24th April, 2026 shall be borne by the Plaintiff/ Applicant whereas the costs of the Notice of Preliminary Objection dated 10th March, 2026 shall be borne by the 1st and 2nd Defendants/ Respondents.

X.   Conclusion and Disposition.

200.   Ultimately, having caused indepth analysis to the framed issues, and upon considering the Notice of Motion applications dated 28th January 2026, 19th February 2026, and 24th April 2026, together with the Notice of Preliminary Objection dated 10th March 2026, the affidavits, submissions, and authorities cited, the Honourable Court on the Preponderance of Probabilities and the balance of convenience,  makes the following specific findings and orders:-

a.   THAT the Notice of Motion application dated 28th January, 2026 be and is hereby merited. The Plaintiff/Applicant has demonstrated a prima facie case, irreparable harm, and that the balance of convenience favours preservation of the Suit Properties. Accordingly, injunctive and inhibitory orders are hereby granted save for the Mandatory injunction which is a final order and cannot be granted at the interim stage.

b.   For avoidance of doubt, the Honourable Court issues the following orders that:

(i)   A temporary injunction do and is hereby issued restraining the 1st and 2nd Defendants, their agents, servants, or any persons claiming under them from leasing, charging, selling, transferring to 3rd parties, alienating, or otherwise dealing with the properties known as Title Numbers C.R. 17508 and C.R.18325 pending the hearing and determination of this suit.

(ii)   A temporary injunction do and is hereby issued restraining the 3rd and 4th Defendants from registering, endorsing, cancelling, or giving effect to any transfer, charge, lease, or other disposition in respect of Title Numbers C.R. 17508 and C.R. 18325 pending the hearing and determination of this suit.

(iii)   An order of inhibition under the provision of Section 68 ( 1 ) & ( 2 ) of the Land Registration Act, No. 3 of 2012 and Section 79 ( 1) & ( 2 ) of the Land Registration (General Regulation) of 2017 do and is hereby issued inhibiting all dealings with Title Numbers C.R.17508 and C.R. 18325 pending the hearing and determination of this suit pending the hearing and determination of this suit.

(iv)   THAT the Officer Commanding Police Station (OCS) Tiwi Police Station and/or the Kwale County Police Commander be directed to enforce the orders of this Court and ensure compliance, and to prevent any breach of peace

c.   THAT the Notice of Motion application dated 19th February, 2026 be and is hereby merited, the Plaintiff having demonstrated sufficient proprietary interest and legal stake in the Suit Properties. Preservation orders are therefore confirmed.

d.   THAT the Notice of Motion application dated 24th April, 2026 seeking to cite the Defendants for contempt be and is hereby dismissed for land of merit. The Plaintiff has failed to discharge the heightened burden of proof required in contempt proceedings. 

e.   THAT the Notice of Preliminary Objection dated 10th March, 2026 be and is hereby found to be unmerited thus dismissed. While the provision of Section 34 of the Civil Procedure Act, Cap. 21 governs execution disputes, the Plaintiff’s claim raises broader issues of fraud, illegality, and constitutional compliance which fall within the jurisdiction of this Honourable Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011. 

f.   THAT the balance of convenience and the overriding objective under Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Cap. 21 favour preservation of the Suit Properties pending trial, to ensure that the substratum of the suit is not wasted or alienated.  

g.   THAT for expediency sake, there shall be a Pre – Trial conference conducted on 1st October, 2026 pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There shall be a hearing of this matter on 21st January, 2027 before the ELC No. 1 preferably through Physical means.

h.   THAT costs of the applications dated 28th January, 2026 and 19th February, 2026 shall be borne by the 1st and 2nd Defendants/Respondents; costs of the application dated 24th April, 2026 shall be borne by the DePlaintiff/Applicant; and costs of the Preliminary Objection dated 10th March 2026 shall be borne by the 1st and 2nd Defendants/Respondents.

IT IS SO ORDERED ACCORDINGLY.

 

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……14TH ..……DAY OF ………JULY..……..……..2026.

Ruling delivered in the presence of:

(a)   M/s. Asmaa Maftah, the Court Assistant.

(b)   Mr. Mwaniki Advocate for the Plaintiff/Applicant. 

(c)   M/s. Gitonga Advocate holding brief for Mr. Kadima (SC) Advocates for the 1st and 2nd Defendants.

(d)   M/s. Kiti Advocate for the 3rd Defendant.

(e)   M/s. Makena Advocate holding brief for Mr. Kirui Advocates for the 5th Defendant.

(f)   Mr. Onuong’a Advocate for the 6th Defendant.