1. This Ruling determines a deeply contested interlocutory application. The Applicant seeks to amend pleadings, secure a temporary injunction, transpose the 3rd Defendant to a Co-Plaintiff and expedite the hearing of this suit.
2. The litigation history of this commercial dispute is remarkably protracted. The original suit was instituted by way of a Plaint dated 30th January, 1996 and subsequently amended on 8th March, 1996. The matter progressed to the Court of Appeal for appellate intervention on preliminary points of law. This is after the Plaintiff’s suit was struck out. This was pursuant to a Ruling on a Preliminary Objection sustained by Ogola J. on 19th April, 2016.
3. The Court of Appeal subsequently remanded the matter back to this Court for a full trial on the merits. A material twist occurred during this intervening period. The original Plaintiff passed away on 9th September, 2025.
4. The estate moved swiftly. Substitution was formally effected in strict compliance with Order 24 Rule 3 of the Civil Procedure Rules. This was by way of a ruling delivered by this Court on 23rd February, 2026. The appointed legal representatives ASHIF SULTAN LALJI, ANEEZ S LALJI and AZIM SULTAN L NURANI now prosecute the suit as the substituted Plaintiff. The present application arises in this revived context.
Background Facts
5. The underlying dispute involves a high-value commercial contract and alleged trespass upon proprietary rights. The substituted Plaintiff claims that the Defendants breached their fiduciary and contractual obligations. The reliefs sought in the Amended Plaint are summarized as follows:
(a) An injunction as against the 2nd and 4th Defendants restraining them from disposing or transferring the suit premises.
(b) A mandatory injunction compelling the 1st and 4th Defendants to transfer the suit property to the 3rd Defendant.
(c) A Declaration that the Plaintiff is entitled to ownership of 750 ordinary shares in the 3rd Defendant.
(d) A Declaration that the appointment of the 1st Defendant as director of the 3rd Defendant is invalid.
(e) The 1st Defendant be removed as a director of the 3rd Defendant.
(f) The 1st, 2nd and 3rd Defendants do provide Annual accounts of the 3rd Defendant for the years 1989 to 1995.
(g) General damages.
(h) An account of profits made by the 1st, 2nd and 4th Defendants from the sale of the property.
(i) Payments of sums found due after taking of accounts.
(j) Interest at bank rates
(k) Costs of the suit.
6. The substituted Plaintiff brings the present Amended Notice of Motion seeking expedited interlocutory interventions. The application seeks the following reliefs:
1. THAT the matter be certified urgent, and in the first instance, heard ex parte.
2. THAT in the first instance, and thereafter pending determination of this Application and the suit, the Defendants, their agents or whomsoever be restrained from selling, disposing off or dealing in any manner howsoever with L.R. 37/132 (IR 93049 situated along Uhuru Highway, Nairobi, gazetted by the Cabinet Secretary for the Ministry of Lands and Physical Planning for conversion to new parcel number Nairobi Block 70/4 under the current Land Registration Act).
3. THAT the amended Plaint be further amended as per the annexed draft.
4. THAT Trio Holdings Limited be transposed from the position of a Defendant to that of a co-plaintiff.
5. THAT hearing of the main suit be expedited or, alternatively the Plaintiffs evidence be taken de bene esse.
7. The grounds supporting the application are explicitly detailed. The Applicant avers that the proposed amendments are vital to reflect the substitution and to determine the real controversy. The Applicant contends that an injunction is critical because the Defendants threaten to dissipate the property. That it is necessary for the hearing and determination of this case to transpose the 3rd Defendant to the position of a Co-Plaintiff. The Plaintiff being the sole or majority share-holder of the 3rd Defendant. Finally, the Applicant asserts that the substituted Plaintiff is of advanced age and deteriorating health. This physical frailty necessitates the expedited taking of evidence de bene esse. As at the date when the Application was argued, this position had changed due to the death of the original Plaintiff as alluded to earlier.
8. The 1st and 3rd Defendants vehemently oppose the application. The opposition is anchored on the 1st Defendant’s Grounds of Opposition dated 5th February, 2024. The 3rd Defendant relies upon the Grounds of Opposition dated 26th April, 2024.
9. The 1st and 3rd Defendants contend that the proposed amendment introduces a novel cause of action. They argue that there is no prayer for re-amending the Plaint. They aver that the prayer for an injunction fails the established threshold tests. That the injunction is sought against parties who are not part and parcel of this suit. Hence, they would be affected by the orders of this Court and condemned unheard. That the 3rd Defendant has not conceded to be a Co-Plaintiff. That the concession that the Plaintiff is the majority or sole shareholder of the 3rd Defendant is contested. Crucially, the Defendants argue that taking evidence de bene esse is an irregular and impossible procedure now that the original Plaintiff has passed away.
10. The Court directed that the Motion be disposed of by way of written submissions.
11. In the Plaintiff’s written submissions, Counsel relies on Order 8 Rule 3 of the Civil Procedure Rules regarding the amendment of pleadings. The applicant cites Institute for Social Accountability & Another vs. Parliament of Kenya & 3 Others [2014] eKLR, Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] eKLR, St. Patrick's Hill School Limited v Bank of Africa Kenya Limited [2018] eKLR and Dhl Global Forwarding (K) Limited v P. J. Dave (Epz) Limited [2015] eKLR. The core argument is that amendments must be freely allowed to prevent the defeat of substantive justice.
12. On the injunction, the Applicant relies heavily on the locus classicus of Giella v Cassman Brown [1973] EA 358, Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 [2014] eKLR, Mrao Ltd. V. First American Bank of Kenya Limited & 2 Others [2003], KLR 125, Bananahill Investment Ltd v Panafrican Bank Ltd & 2 Others [1987] eKLR, Isaac Musyoki Komoni v Sammy Kaumbulu Mbuvi [2022] eKLR, Gitere v Gitere Kahura Investments Limited & 3 others (Environment & Land case E049 of 2022) 120231 KEELC 20838 (KLR) (19 October 2023) (Ruling), Pwani Baridi Waterways Limited v Muya & another (Environment & Land Case 74 of 2020) [2022] KEELC 14582 (KLR) (30 June 2022) (Ruling) and Kimani & 6 others v Kanyi & another (Environment & Land Case 158 of 2021) [2023] eKLR. The Applicant argues that a prima facie case with a probability of success is established. That irreparable harm that cannot be compensated by way of monetary damages has been established and finally that the balance of convenience supports granting the injunction.
13. On the evidentiary prayer, the Applicant invokes Order 28 Rule 1 of the Civil Procedure Rules to justify the de bene esse examination. It also relies on Order 1 rule 10 of the Civil Procedure Rules to justify the transposition of the 3rd Defendant to the position of a Co-Plaintiff.
14. The Defendants' submissions emphasize structural prejudice. While the 3rd Defendant opposes the amendments, the 1st Defendant leaves it to the discretion of this Court. They both submit that the injunctions are sought against parties who are not the subject of this suit. This is because the property has been transferred to Third parties. On transposing the 3rd Defendant as a Plaintiff, this is opposed as the 3rd Defendant has not resolved to do so. In any event the Plaintiff seeks specific reliefs in the Plaint as against the 3rd Defendant. The Defendants forcefully submit that the death of the Plaintiff renders any de bene esse application legally moot. They argue that a deceased person cannot be examined.
Issues for Determination
15. The Court has evaluated the pleadings, the affidavits, and the rival submissions. The Court has also considered the oral highlights of the submissions made by Counsel for the parties. The Court frames four issues for determination:
(i) Whether leave should be granted to amend the Plaint.
(ii) Whether the Applicant is entitled to an order of temporary injunction.
(iii) Whether the 3rd Defendant ought to be transposed as a Co-Plaintiff.
(iv) Whether the Court can legally mandate the taking of evidence de bene esse following the death and substitution of the original Plaintiff or the hearing of the suit ought to be expedited.
Analysis
16. The application by way of the reliefs sought calls for the exercise of discretion. The prayers sought do not lie as of right. In exercising such discretion, the Court is reminded of its duty to act judiciously and not capriciously. In Mbogo & Another v. Shah [1968] EA 93, the Court is reminded that it cannot act on a whim but rather it has to apply reasons to its decisions.
(i) Whether leave should be granted to amend the Plaint.
17. The first issue concerns the amendment of pleadings. Order 8 Rule 3(1) of the Civil Procedure Rules confers wide discretionary powers upon the Court. The Court may allow a party to amend pleadings at any stage of the proceedings upon such terms as to costs or otherwise as may be just.
18. The jurisprudence guiding this discretion is deeply entrenched. The Court of Appeal in Eastern Bakery v Castelino [1958] EA 461 laid down the golden rule. The Court stated:
"Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side and that the other side can be compensated by costs".
19. The suit has not been heard and the Defendants can respond to the Amended Plaint by filing their amended defences.
20. Leave to amend the Plaint is granted.
(ii) Whether the Applicant is entitled to an order of temporary injunction.
21. The second issue pertains to the equitable relief of a temporary injunction. Order 40 Rule 1 of the Civil Procedure Rules provides the statutory foundation. The tripartite test formulated in Giella Vs Cassman Brown & Co Ltd (1973) EA 358, remains the unshakeable bedrock of our jurisprudence.
22. The Applicant must first demonstrate a prima facie case with a probability of success. The Applicant must secondly prove that irreparable injury will occur if the injunction is denied. Thirdly, if the Court is in doubt, the matter is resolved on the balance of convenience.
23. What concerns this Court is the averment that the suit property has changed hands. That it has been transferred to Firtree Limited, which later charged the same property to Diamond Trust Bank for USD 4,500,000/=. These entities are not parties before this Court. They are now sought to be joined as the 3rd and 7th Defendants.
24. To grant an injunction as against a party who is not the subject of these proceedings is to condemn such a party unheard. To grant an injunction before joinder, even if it is by way of amendments, is to put the cart before a horse, so to speak.
25. The Court deems it awkward to grant an injunction against parties whom it is sought to be joined to this suit. As matters stand and on the basis of the current Amended Plaint, no claim has been pleaded as against such parties. Hence, no prima facie case has been established.
26. With the property having been transferred, no injunction can be said to lie as against the 1st and 3rd Defendants, the horse having already bolted from the stable, so to speak.
27. As the Plaintiff has not surmounted the prima facie case hurdle, the Court need not consider the other two limbs of irreparable loss and the balance of convenience. If a party cannot prove a prima facie case, the Court need not consider the other two limbs. In Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR, the Court of Appeal reiterated the above as follows:
“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”
(iii) Whether the 3rd Defendant ought to be transposed as a Co-Plaintiff.
28. The Plaintiff seeks to have the 3rd Defendant transposed as a Co-Plaintiff. This is on the ground that there is a concession that the Plaintiff was the sole or majority shareholder of the 3rd Defendant. This concession is said to have been made from the bar by Counsel for the 3rd Defendant. It is not unequivocal. It is disputed by Counsel for the 3rd Defendant. Mr Wakla has resisted attempts by the firm of LJA Associates LLP to take over conduct of this case on behalf of his client, the 3rd Defendant. He submits that there is no board resolution by his client consenting to switch over to the Plaintiff’s side. The Court of Appeal and Sifuna J. have weighed in on the issue of the shareholding of the 3rd Defendant. They have expressed that this is a contested issue.
29. The Court also notes that the Plaintiff does seek specific reliefs directed as against the 3rd Defendant. Even the Draft Further Amended Plaint maintains specific reliefs sought by the Plaintiff as against the 3rd Defendant.
30. The Plaintiff cites Shariff Mohamed A. Omar vs Bontempt Luigi and 3 others [2002] eKLR, which held that Order 1 Rule 10 of the Civil Procedure Rules, allows for transposition of a Defendant to a Plaintiff at any stage of the proceeding. Whereas the Court is persuaded that in appropriate cases, a decision for transposition of a Defendant to a Plaintiff can occur, this Court is not persuaded that this is one of such cases.
31. The active resistance by the 3rd Defendant as well as the claims in the Plaint by the Plaintiff directed as against the 3rd Defendant, calls for the Court to exercise caution in exercise of its discretion.
32. The Court is not persuaded that allowing the transposition at this stage will advance this case or serve the ends of justice.
(iv) Whether the Court can legally mandate the taking of evidence de bene esse following the death and substitution of the original Plaintiff or the hearing of the suit ought to be expedited.
33. The fourth issue presents a unique jurisprudential twist. The Applicant seeks to have evidence taken de bene esse under circumstances where the original Plaintiff has died. The Defendants contend this is a legal impossibility.
34. It is a trite and immutable rule of evidence that a deceased person cannot testify. The Court cannot issue a retrospective order to capture the oral evidence of the deceased. To the extent that the Defendants assumed the application sought this impossibility, their opposition is factually accurate.
35. However, this assumption is contextually misdirected. The suit did not abate upon the death of the Plaintiff. Strict compliance with Order 24 Rule 3 of the Civil Procedure Rules ensured the timely substitution of the legal representative. The Court is guided by the persuasive authority of Silas Njeru Njiru & 2 others v Mugo Mukere; Leonard Njeru Mukera & another (Intended Defendants/Respondents) [2022] KEELC 1672 (KLR). The case affirms that upon proper substitution, the legal representative completely steps into the shoes of the deceased.
36. The legal representatives are now the substantive Plaintiff before this Court. Order 18 Rule 9 of the Civil Procedure Rules deals with the taking of evidence of a witness on an urgent basis.
37. In Sakaja v Sakaja [2025] eKLR, the Environment and Land Court correctly held that advanced age and deteriorating health constitute sufficient cause for taking evidence de bene esse. The right to have testimony recorded early is a procedural safeguard designed to prevent the catastrophic loss of critical evidence.
38. The legal representatives of the Plaintiff have not placed evidence before the Court to demonstrate that they deserve to have their evidence taken de bene esse.
39. Nevertheless, the Court notes that this case is old and constitutes backlog in the division. The Court of its own motion flags this case as one that deserves to be expedited for hearing and conclusion with minimal or no adjournments.
40. As to costs the same ordinarily follow the event and lie at the discretion of this Court. The Court is persuaded that a fair order is that costs will be in the cause.
Determination
41. This Court, having considered the Plaintiff’s application by way of an Amended Notice of Motion dated 31st July, 2025 issues the following orders:
1. THAT the prayer for an injunction is HEREBY declined.
2. THAT the amended Plaint be further amended as per the annexed draft, subject to the terms of this Ruling. The Further Amended Plaint be served upon the Defendants within the next Fourteen days. Leave is granted to the Defendants to file their Amended Defences within Fourteen days of service.
3. THAT the prayer for Trio Holdings Limited to be transposed from the position of a Defendant to that of a Co-Plaintiff is HEREBY declined.
4. THAT the hearing of the main suit be expedited and directions to facilitate an expedited hearing will be given upon delivery of this Ruling.
5. THAT the costs of this application shall abide the outcome of the main suit.
42. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Orwenyo holding brief for Mr. Ned Malakwen for the Plaintiff/Applicant.
Mr Omuga for the 1st Defendant/Respondent.
Mr. Wakla for the 3rd Defendant/Respondent.
Mr. John Paul - Court Assistant.
2. The litigation history of this commercial dispute is remarkably protracted. The original suit was instituted by way of a Plaint dated 30th January, 1996 and subsequently amended on 8th March, 1996. The matter progressed to the Court of Appeal for appellate intervention on preliminary points of law. This is after the Plaintiff’s suit was struck out. This was pursuant to a Ruling on a Preliminary Objection sustained by Ogola J. on 19th April, 2016.
3. The Court of Appeal subsequently remanded the matter back to this Court for a full trial on the merits. A material twist occurred during this intervening period. The original Plaintiff passed away on 9th September, 2025.
4. The estate moved swiftly. Substitution was formally effected in strict compliance with Order 24 Rule 3 of the Civil Procedure Rules. This was by way of a ruling delivered by this Court on 23rd February, 2026. The appointed legal representatives ASHIF SULTAN LALJI, ANEEZ S LALJI and AZIM SULTAN L NURANI now prosecute the suit as the substituted Plaintiff. The present application arises in this revived context.
Background Facts
5. The underlying dispute involves a high-value commercial contract and alleged trespass upon proprietary rights. The substituted Plaintiff claims that the Defendants breached their fiduciary and contractual obligations. The reliefs sought in the Amended Plaint are summarized as follows:
(a) An injunction as against the 2nd and 4th Defendants restraining them from disposing or transferring the suit premises.
(b) A mandatory injunction compelling the 1st and 4th Defendants to transfer the suit property to the 3rd Defendant.
(c) A Declaration that the Plaintiff is entitled to ownership of 750 ordinary shares in the 3rd Defendant.
(d) A Declaration that the appointment of the 1st Defendant as director of the 3rd Defendant is invalid.
(e) The 1st Defendant be removed as a director of the 3rd Defendant.
(f) The 1st, 2nd and 3rd Defendants do provide Annual accounts of the 3rd Defendant for the years 1989 to 1995.
(g) General damages.
(h) An account of profits made by the 1st, 2nd and 4th Defendants from the sale of the property.
(i) Payments of sums found due after taking of accounts.
(j) Interest at bank rates
(k) Costs of the suit.
6. The substituted Plaintiff brings the present Amended Notice of Motion seeking expedited interlocutory interventions. The application seeks the following reliefs:
1. THAT the matter be certified urgent, and in the first instance, heard ex parte.
2. THAT in the first instance, and thereafter pending determination of this Application and the suit, the Defendants, their agents or whomsoever be restrained from selling, disposing off or dealing in any manner howsoever with L.R. 37/132 (IR 93049 situated along Uhuru Highway, Nairobi, gazetted by the Cabinet Secretary for the Ministry of Lands and Physical Planning for conversion to new parcel number Nairobi Block 70/4 under the current Land Registration Act).
3. THAT the amended Plaint be further amended as per the annexed draft.
4. THAT Trio Holdings Limited be transposed from the position of a Defendant to that of a co-plaintiff.
5. THAT hearing of the main suit be expedited or, alternatively the Plaintiffs evidence be taken de bene esse.
7. The grounds supporting the application are explicitly detailed. The Applicant avers that the proposed amendments are vital to reflect the substitution and to determine the real controversy. The Applicant contends that an injunction is critical because the Defendants threaten to dissipate the property. That it is necessary for the hearing and determination of this case to transpose the 3rd Defendant to the position of a Co-Plaintiff. The Plaintiff being the sole or majority share-holder of the 3rd Defendant. Finally, the Applicant asserts that the substituted Plaintiff is of advanced age and deteriorating health. This physical frailty necessitates the expedited taking of evidence de bene esse. As at the date when the Application was argued, this position had changed due to the death of the original Plaintiff as alluded to earlier.
8. The 1st and 3rd Defendants vehemently oppose the application. The opposition is anchored on the 1st Defendant’s Grounds of Opposition dated 5th February, 2024. The 3rd Defendant relies upon the Grounds of Opposition dated 26th April, 2024.
9. The 1st and 3rd Defendants contend that the proposed amendment introduces a novel cause of action. They argue that there is no prayer for re-amending the Plaint. They aver that the prayer for an injunction fails the established threshold tests. That the injunction is sought against parties who are not part and parcel of this suit. Hence, they would be affected by the orders of this Court and condemned unheard. That the 3rd Defendant has not conceded to be a Co-Plaintiff. That the concession that the Plaintiff is the majority or sole shareholder of the 3rd Defendant is contested. Crucially, the Defendants argue that taking evidence de bene esse is an irregular and impossible procedure now that the original Plaintiff has passed away.
10. The Court directed that the Motion be disposed of by way of written submissions.
11. In the Plaintiff’s written submissions, Counsel relies on Order 8 Rule 3 of the Civil Procedure Rules regarding the amendment of pleadings. The applicant cites Institute for Social Accountability & Another vs. Parliament of Kenya & 3 Others [2014] eKLR, Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] eKLR, St. Patrick's Hill School Limited v Bank of Africa Kenya Limited [2018] eKLR and Dhl Global Forwarding (K) Limited v P. J. Dave (Epz) Limited [2015] eKLR. The core argument is that amendments must be freely allowed to prevent the defeat of substantive justice.
12. On the injunction, the Applicant relies heavily on the locus classicus of Giella v Cassman Brown [1973] EA 358, Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 [2014] eKLR, Mrao Ltd. V. First American Bank of Kenya Limited & 2 Others [2003], KLR 125, Bananahill Investment Ltd v Panafrican Bank Ltd & 2 Others [1987] eKLR, Isaac Musyoki Komoni v Sammy Kaumbulu Mbuvi [2022] eKLR, Gitere v Gitere Kahura Investments Limited & 3 others (Environment & Land case E049 of 2022) 120231 KEELC 20838 (KLR) (19 October 2023) (Ruling), Pwani Baridi Waterways Limited v Muya & another (Environment & Land Case 74 of 2020) [2022] KEELC 14582 (KLR) (30 June 2022) (Ruling) and Kimani & 6 others v Kanyi & another (Environment & Land Case 158 of 2021) [2023] eKLR. The Applicant argues that a prima facie case with a probability of success is established. That irreparable harm that cannot be compensated by way of monetary damages has been established and finally that the balance of convenience supports granting the injunction.
13. On the evidentiary prayer, the Applicant invokes Order 28 Rule 1 of the Civil Procedure Rules to justify the de bene esse examination. It also relies on Order 1 rule 10 of the Civil Procedure Rules to justify the transposition of the 3rd Defendant to the position of a Co-Plaintiff.
14. The Defendants' submissions emphasize structural prejudice. While the 3rd Defendant opposes the amendments, the 1st Defendant leaves it to the discretion of this Court. They both submit that the injunctions are sought against parties who are not the subject of this suit. This is because the property has been transferred to Third parties. On transposing the 3rd Defendant as a Plaintiff, this is opposed as the 3rd Defendant has not resolved to do so. In any event the Plaintiff seeks specific reliefs in the Plaint as against the 3rd Defendant. The Defendants forcefully submit that the death of the Plaintiff renders any de bene esse application legally moot. They argue that a deceased person cannot be examined.
Issues for Determination
15. The Court has evaluated the pleadings, the affidavits, and the rival submissions. The Court has also considered the oral highlights of the submissions made by Counsel for the parties. The Court frames four issues for determination:
(i) Whether leave should be granted to amend the Plaint.
(ii) Whether the Applicant is entitled to an order of temporary injunction.
(iii) Whether the 3rd Defendant ought to be transposed as a Co-Plaintiff.
(iv) Whether the Court can legally mandate the taking of evidence de bene esse following the death and substitution of the original Plaintiff or the hearing of the suit ought to be expedited.
Analysis
16. The application by way of the reliefs sought calls for the exercise of discretion. The prayers sought do not lie as of right. In exercising such discretion, the Court is reminded of its duty to act judiciously and not capriciously. In Mbogo & Another v. Shah [1968] EA 93, the Court is reminded that it cannot act on a whim but rather it has to apply reasons to its decisions.
(i) Whether leave should be granted to amend the Plaint.
17. The first issue concerns the amendment of pleadings. Order 8 Rule 3(1) of the Civil Procedure Rules confers wide discretionary powers upon the Court. The Court may allow a party to amend pleadings at any stage of the proceedings upon such terms as to costs or otherwise as may be just.
18. The jurisprudence guiding this discretion is deeply entrenched. The Court of Appeal in Eastern Bakery v Castelino [1958] EA 461 laid down the golden rule. The Court stated:
"Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side and that the other side can be compensated by costs".
19. The suit has not been heard and the Defendants can respond to the Amended Plaint by filing their amended defences.
20. Leave to amend the Plaint is granted.
(ii) Whether the Applicant is entitled to an order of temporary injunction.
21. The second issue pertains to the equitable relief of a temporary injunction. Order 40 Rule 1 of the Civil Procedure Rules provides the statutory foundation. The tripartite test formulated in Giella Vs Cassman Brown & Co Ltd (1973) EA 358, remains the unshakeable bedrock of our jurisprudence.
22. The Applicant must first demonstrate a prima facie case with a probability of success. The Applicant must secondly prove that irreparable injury will occur if the injunction is denied. Thirdly, if the Court is in doubt, the matter is resolved on the balance of convenience.
23. What concerns this Court is the averment that the suit property has changed hands. That it has been transferred to Firtree Limited, which later charged the same property to Diamond Trust Bank for USD 4,500,000/=. These entities are not parties before this Court. They are now sought to be joined as the 3rd and 7th Defendants.
24. To grant an injunction as against a party who is not the subject of these proceedings is to condemn such a party unheard. To grant an injunction before joinder, even if it is by way of amendments, is to put the cart before a horse, so to speak.
25. The Court deems it awkward to grant an injunction against parties whom it is sought to be joined to this suit. As matters stand and on the basis of the current Amended Plaint, no claim has been pleaded as against such parties. Hence, no prima facie case has been established.
26. With the property having been transferred, no injunction can be said to lie as against the 1st and 3rd Defendants, the horse having already bolted from the stable, so to speak.
27. As the Plaintiff has not surmounted the prima facie case hurdle, the Court need not consider the other two limbs of irreparable loss and the balance of convenience. If a party cannot prove a prima facie case, the Court need not consider the other two limbs. In Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR, the Court of Appeal reiterated the above as follows:
“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”
(iii) Whether the 3rd Defendant ought to be transposed as a Co-Plaintiff.
28. The Plaintiff seeks to have the 3rd Defendant transposed as a Co-Plaintiff. This is on the ground that there is a concession that the Plaintiff was the sole or majority shareholder of the 3rd Defendant. This concession is said to have been made from the bar by Counsel for the 3rd Defendant. It is not unequivocal. It is disputed by Counsel for the 3rd Defendant. Mr Wakla has resisted attempts by the firm of LJA Associates LLP to take over conduct of this case on behalf of his client, the 3rd Defendant. He submits that there is no board resolution by his client consenting to switch over to the Plaintiff’s side. The Court of Appeal and Sifuna J. have weighed in on the issue of the shareholding of the 3rd Defendant. They have expressed that this is a contested issue.
29. The Court also notes that the Plaintiff does seek specific reliefs directed as against the 3rd Defendant. Even the Draft Further Amended Plaint maintains specific reliefs sought by the Plaintiff as against the 3rd Defendant.
30. The Plaintiff cites Shariff Mohamed A. Omar vs Bontempt Luigi and 3 others [2002] eKLR, which held that Order 1 Rule 10 of the Civil Procedure Rules, allows for transposition of a Defendant to a Plaintiff at any stage of the proceeding. Whereas the Court is persuaded that in appropriate cases, a decision for transposition of a Defendant to a Plaintiff can occur, this Court is not persuaded that this is one of such cases.
31. The active resistance by the 3rd Defendant as well as the claims in the Plaint by the Plaintiff directed as against the 3rd Defendant, calls for the Court to exercise caution in exercise of its discretion.
32. The Court is not persuaded that allowing the transposition at this stage will advance this case or serve the ends of justice.
(iv) Whether the Court can legally mandate the taking of evidence de bene esse following the death and substitution of the original Plaintiff or the hearing of the suit ought to be expedited.
33. The fourth issue presents a unique jurisprudential twist. The Applicant seeks to have evidence taken de bene esse under circumstances where the original Plaintiff has died. The Defendants contend this is a legal impossibility.
34. It is a trite and immutable rule of evidence that a deceased person cannot testify. The Court cannot issue a retrospective order to capture the oral evidence of the deceased. To the extent that the Defendants assumed the application sought this impossibility, their opposition is factually accurate.
35. However, this assumption is contextually misdirected. The suit did not abate upon the death of the Plaintiff. Strict compliance with Order 24 Rule 3 of the Civil Procedure Rules ensured the timely substitution of the legal representative. The Court is guided by the persuasive authority of Silas Njeru Njiru & 2 others v Mugo Mukere; Leonard Njeru Mukera & another (Intended Defendants/Respondents) [2022] KEELC 1672 (KLR). The case affirms that upon proper substitution, the legal representative completely steps into the shoes of the deceased.
36. The legal representatives are now the substantive Plaintiff before this Court. Order 18 Rule 9 of the Civil Procedure Rules deals with the taking of evidence of a witness on an urgent basis.
37. In Sakaja v Sakaja [2025] eKLR, the Environment and Land Court correctly held that advanced age and deteriorating health constitute sufficient cause for taking evidence de bene esse. The right to have testimony recorded early is a procedural safeguard designed to prevent the catastrophic loss of critical evidence.
38. The legal representatives of the Plaintiff have not placed evidence before the Court to demonstrate that they deserve to have their evidence taken de bene esse.
39. Nevertheless, the Court notes that this case is old and constitutes backlog in the division. The Court of its own motion flags this case as one that deserves to be expedited for hearing and conclusion with minimal or no adjournments.
40. As to costs the same ordinarily follow the event and lie at the discretion of this Court. The Court is persuaded that a fair order is that costs will be in the cause.
Determination
41. This Court, having considered the Plaintiff’s application by way of an Amended Notice of Motion dated 31st July, 2025 issues the following orders:
1. THAT the prayer for an injunction is HEREBY declined.
2. THAT the amended Plaint be further amended as per the annexed draft, subject to the terms of this Ruling. The Further Amended Plaint be served upon the Defendants within the next Fourteen days. Leave is granted to the Defendants to file their Amended Defences within Fourteen days of service.
3. THAT the prayer for Trio Holdings Limited to be transposed from the position of a Defendant to that of a Co-Plaintiff is HEREBY declined.
4. THAT the hearing of the main suit be expedited and directions to facilitate an expedited hearing will be given upon delivery of this Ruling.
5. THAT the costs of this application shall abide the outcome of the main suit.
42. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Orwenyo holding brief for Mr. Ned Malakwen for the Plaintiff/Applicant.
Mr Omuga for the 1st Defendant/Respondent.
Mr. Wakla for the 3rd Defendant/Respondent.
Mr. John Paul - Court Assistant.