Introduction
1. Before this Court is the Plaintiff/Applicant's Notice of Motion dated 4th May 2026, brought under Order 51 Rule 1 and Order 40 Rule 1 of the Civil Procedure Rules, 2010, and Sections 1A, 1B and 3A of the Civil Procedure Act. The Applicant principally seeks a temporary injunction restraining the 2nd Defendant, National Bank of Kenya Limited, and the 3rd Defendant, its appointed Receiver Manager, from gaining access to, taking possession or control of, managing, selling or otherwise disposing of the business, factory and properties situated on L.R. Nos. 209/8628 and 9363/98, pending the hearing and determination of the suit.
2. The application is premised on the grounds on the face of the record and supported by the affidavit of Yobesh Kenya Ontiria, the Applicant herein. All the Defendants oppose the application.
Applicant's case
3. The Applicant deposed that he entered into a service agreement with the 1st Defendant on 2nd February 2004 for the supply of hides and skins, under which L.R. Nos. 209/8628 and 9363/98 were allegedly offered as security in the event of default. The Applicant avers that the 1st Defendant defaulted and has made no payments since 2020, resulting in an outstanding sum of Kshs. 26,344,685.57.
4. The Applicant further contends that the 1st Defendant failed to disclose that the properties had been charged to the 2nd Defendant, which encumbrance was allegedly not reflected in the CR12 obtained during due diligence. The Applicant maintains that the 1st Defendant subsequently defaulted on its loan obligations to the 2nd Defendant, thereby exposing the properties to auction, and that the 2nd Defendant appointed the 3rd Defendant as Receiver Manager.
5. The Applicant asserts that unless the Court intervenes to restrain the intended realization of the suit properties, it will suffer irreparable loss, and urges the Court to grant the orders sought in the interests of justice.
1st Defendant's response
6. The 1st Defendant, through the replying affidavit sworn on 8th June 2026 by its director Robert Njoka, avers that it is currently undertaking a comprehensive technical and forensic audit of its financial accounts, transactions, and obligations to the Plaintiff's claim. The 1st Defendant denies the allegation of concealment and non-disclosure, and avers that the loan facilities advanced by the 2nd Defendant over the suit properties have been fully settled, as a result of which the securities are unencumbered and there is no cause for alarm.
2nd Defendant's response
7. The 2nd Defendant, through the replying affidavit sworn by Paul K. Chelang'a, opposes the application on the ground that the 1st Defendant has remained in persistent default despite having admitted an outstanding debt of USD 5,666,000 under a consent recorded in 2017. The 2nd Defendant contends that subsequent litigation challenging the Bank's recovery efforts was dismissed by the High Court, while an application for stay pending appeal was declined by the Court of Appeal.
8. The 2nd Defendant avers that it holds valid charges over L.R. Nos. 209/8628 and 9363/98, together with several debentures securing the 1st Defendant's facilities. Following continued default and service of a demand notice, it exercised its contractual rights under the debentures by appointing a Receiver Manager, with power to take control, manage or dispose of the 1st Defendant's assets and business towards recovery of the outstanding debt.
9. The 2nd Defendant further contends that the application is frivolous, vexatious and an abuse of the Court process as the dispute concerning the securities has already been litigated upon. It argues that the 2nd Defendant's rights as a secured creditor and chargee take priority over the Applicant's alleged interest as an unsecured creditor/supplier, and that the Applicant has consequently established no basis for restraining the Bank from enforcing its securities.
Submissions
10. The application was canvassed by way of written submissions. The Plaintiff filed two sets of submissions dated 11th June 2026 and 26th June 2026. The 2nd Defendant filed submissions dated 22nd June 2026, while the 1st Defendant filed submissions dated 27th June 2026.
Analysis and determination
11. I have considered the application, the affidavits in support and opposition thereto, the rival submissions and the authorities cited. The principal issue for determination is whether the Plaintiff/Applicant has satisfied the threshold for the grant of a temporary injunction.
12. The jurisdiction of the Court to grant a temporary injunction is provided for under Order 40 Rule 1 of the Civil Procedure Rules. The applicable principles are settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court held that:
“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.”
13. These conditions are sequential, thus, where an applicant fails to establish a prima facie case, the Court need not ordinarily consider irreparable injury or the balance of convenience. This position was affirmed by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.
14. As to what constitutes a prima facie case, the court in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 stated:
“A prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case in which on the material presented to the 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 latter.”
15. Applying those principles to the present application, the Applicant's claim is founded upon a service agreement entered into with the 1st Defendant for the supply of hides and skins. The Applicant contends that the suit properties, L.R. Nos. 209/8628 and 9363/98, were offered as security for the 1st Defendant's obligations and that, following default since 2020, the sum of Kshs. 26,344,685.57 remains outstanding.
16. The difficulty with the Applicant's case, however, is that no evidence has been placed before the Court demonstrating that the alleged security was perfected by the creation and registration of a charge or other proprietary security in its favour. On the material presently before the Court, the Applicant's claim against the 1st Defendant remains essentially contractual. The Applicant is therefore, at least prima facie, an unsecured creditor whose remedy lies against the 1st Defendant for the alleged debt.
17. In contrast, the 2nd Defendant has exhibited registered charges over L.R. Nos. 209/8628 and 9363/98, together with several debentures securing banking facilities advanced to the 1st Defendant. Those securities confer upon the 2nd Defendant proprietary and contractual rights over the charged assets. The Applicant has not demonstrated any registered or other enforceable proprietary interest capable of taking priority over the Bank's securities.
18. Further, the material before the Court shows that the 1st Defendant had admitted an indebtedness of USD 5,666,000 to the 2nd Defendant under a consent recorded in 2017. The 2nd Defendant maintains that the debt remains unpaid and that, following continued default and service of a demand notice, it appointed the 3rd Defendant as Receiver Manager pursuant to the powers conferred by the debentures. Although the 1st Defendant now asserts that the facilities have been fully settled, that assertion is disputed by the Bank and cannot, on the material presently before the Court, displace the registered securities relied upon by the 2nd Defendant.
19. I have also considered the fact that the dispute between the 1st and 2nd Defendants concerning the lending relationship and enforcement of the securities has previously been litigated in HCCOMM E102 of 2019. The High Court dismissed the challenge to the Bank's recovery efforts in its judgment dated 14th March 2024, and the Court of Appeal subsequently declined to grant a stay of execution of the judgment pending appeal in its ruling dated 24th January 2025. While the Applicant was not a party to those proceedings, this Court must be slow, at an interlocutory stage and at the instance of an unsecured creditor, to issue orders whose effect would be to impede the exercise of rights under securities that have already been the subject of previous judicial proceedings.
20. In the circumstances, I am not satisfied that the Applicant has demonstrated an apparent legal or equitable right over the suit properties which has been infringed or threatened with infringement by the 2nd and 3rd Defendants. What emerges is a monetary claim against the 1st Defendant arising from the alleged breach of the service agreement. That claim, without more, cannot found an injunction restraining a secured creditor from enforcing its registered securities.
21. I therefore find that the Applicant has failed to establish a prima facie case with a probability of success against the 2nd and 3rd Defendants. Having so found, it is unnecessary to consider the remaining limbs of irreparable injury and balance of convenience. As held in Nguruman Limited (supra), the conditions for granting an interlocutory injunction are sequential, and failure at the first stage ends the inquiry.
22. For the foregoing reasons, I find that the Notice of Motion dated 4th May 2026 lacks merit and is hereby dismissed. Consequently, any interim orders previously issued restraining the 2nd and 3rd Defendants are hereby discharged.
23. The costs of the application shall abide the outcome of the suit.
It is so ordered.
RULING delivered virtually, dated and signed at NAIROBI
This 1st day of September 2026.
PETER M. MULWA
JUDGE
In the presence of:
Ms. Munguti h/b for Mr. Odira for Plaintiff/Applicant
Mr. Kirimi for 1st Defendant
Mr. Chege for 2nd Defendants
Mr. Tugee for 3rd Defendant
Court Assistant: Sharon
1. Before this Court is the Plaintiff/Applicant's Notice of Motion dated 4th May 2026, brought under Order 51 Rule 1 and Order 40 Rule 1 of the Civil Procedure Rules, 2010, and Sections 1A, 1B and 3A of the Civil Procedure Act. The Applicant principally seeks a temporary injunction restraining the 2nd Defendant, National Bank of Kenya Limited, and the 3rd Defendant, its appointed Receiver Manager, from gaining access to, taking possession or control of, managing, selling or otherwise disposing of the business, factory and properties situated on L.R. Nos. 209/8628 and 9363/98, pending the hearing and determination of the suit.
2. The application is premised on the grounds on the face of the record and supported by the affidavit of Yobesh Kenya Ontiria, the Applicant herein. All the Defendants oppose the application.
Applicant's case
3. The Applicant deposed that he entered into a service agreement with the 1st Defendant on 2nd February 2004 for the supply of hides and skins, under which L.R. Nos. 209/8628 and 9363/98 were allegedly offered as security in the event of default. The Applicant avers that the 1st Defendant defaulted and has made no payments since 2020, resulting in an outstanding sum of Kshs. 26,344,685.57.
4. The Applicant further contends that the 1st Defendant failed to disclose that the properties had been charged to the 2nd Defendant, which encumbrance was allegedly not reflected in the CR12 obtained during due diligence. The Applicant maintains that the 1st Defendant subsequently defaulted on its loan obligations to the 2nd Defendant, thereby exposing the properties to auction, and that the 2nd Defendant appointed the 3rd Defendant as Receiver Manager.
5. The Applicant asserts that unless the Court intervenes to restrain the intended realization of the suit properties, it will suffer irreparable loss, and urges the Court to grant the orders sought in the interests of justice.
1st Defendant's response
6. The 1st Defendant, through the replying affidavit sworn on 8th June 2026 by its director Robert Njoka, avers that it is currently undertaking a comprehensive technical and forensic audit of its financial accounts, transactions, and obligations to the Plaintiff's claim. The 1st Defendant denies the allegation of concealment and non-disclosure, and avers that the loan facilities advanced by the 2nd Defendant over the suit properties have been fully settled, as a result of which the securities are unencumbered and there is no cause for alarm.
2nd Defendant's response
7. The 2nd Defendant, through the replying affidavit sworn by Paul K. Chelang'a, opposes the application on the ground that the 1st Defendant has remained in persistent default despite having admitted an outstanding debt of USD 5,666,000 under a consent recorded in 2017. The 2nd Defendant contends that subsequent litigation challenging the Bank's recovery efforts was dismissed by the High Court, while an application for stay pending appeal was declined by the Court of Appeal.
8. The 2nd Defendant avers that it holds valid charges over L.R. Nos. 209/8628 and 9363/98, together with several debentures securing the 1st Defendant's facilities. Following continued default and service of a demand notice, it exercised its contractual rights under the debentures by appointing a Receiver Manager, with power to take control, manage or dispose of the 1st Defendant's assets and business towards recovery of the outstanding debt.
9. The 2nd Defendant further contends that the application is frivolous, vexatious and an abuse of the Court process as the dispute concerning the securities has already been litigated upon. It argues that the 2nd Defendant's rights as a secured creditor and chargee take priority over the Applicant's alleged interest as an unsecured creditor/supplier, and that the Applicant has consequently established no basis for restraining the Bank from enforcing its securities.
Submissions
10. The application was canvassed by way of written submissions. The Plaintiff filed two sets of submissions dated 11th June 2026 and 26th June 2026. The 2nd Defendant filed submissions dated 22nd June 2026, while the 1st Defendant filed submissions dated 27th June 2026.
Analysis and determination
11. I have considered the application, the affidavits in support and opposition thereto, the rival submissions and the authorities cited. The principal issue for determination is whether the Plaintiff/Applicant has satisfied the threshold for the grant of a temporary injunction.
12. The jurisdiction of the Court to grant a temporary injunction is provided for under Order 40 Rule 1 of the Civil Procedure Rules. The applicable principles are settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court held that:
“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.”
13. These conditions are sequential, thus, where an applicant fails to establish a prima facie case, the Court need not ordinarily consider irreparable injury or the balance of convenience. This position was affirmed by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.
14. As to what constitutes a prima facie case, the court in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 stated:
“A prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case in which on the material presented to the 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 latter.”
15. Applying those principles to the present application, the Applicant's claim is founded upon a service agreement entered into with the 1st Defendant for the supply of hides and skins. The Applicant contends that the suit properties, L.R. Nos. 209/8628 and 9363/98, were offered as security for the 1st Defendant's obligations and that, following default since 2020, the sum of Kshs. 26,344,685.57 remains outstanding.
16. The difficulty with the Applicant's case, however, is that no evidence has been placed before the Court demonstrating that the alleged security was perfected by the creation and registration of a charge or other proprietary security in its favour. On the material presently before the Court, the Applicant's claim against the 1st Defendant remains essentially contractual. The Applicant is therefore, at least prima facie, an unsecured creditor whose remedy lies against the 1st Defendant for the alleged debt.
17. In contrast, the 2nd Defendant has exhibited registered charges over L.R. Nos. 209/8628 and 9363/98, together with several debentures securing banking facilities advanced to the 1st Defendant. Those securities confer upon the 2nd Defendant proprietary and contractual rights over the charged assets. The Applicant has not demonstrated any registered or other enforceable proprietary interest capable of taking priority over the Bank's securities.
18. Further, the material before the Court shows that the 1st Defendant had admitted an indebtedness of USD 5,666,000 to the 2nd Defendant under a consent recorded in 2017. The 2nd Defendant maintains that the debt remains unpaid and that, following continued default and service of a demand notice, it appointed the 3rd Defendant as Receiver Manager pursuant to the powers conferred by the debentures. Although the 1st Defendant now asserts that the facilities have been fully settled, that assertion is disputed by the Bank and cannot, on the material presently before the Court, displace the registered securities relied upon by the 2nd Defendant.
19. I have also considered the fact that the dispute between the 1st and 2nd Defendants concerning the lending relationship and enforcement of the securities has previously been litigated in HCCOMM E102 of 2019. The High Court dismissed the challenge to the Bank's recovery efforts in its judgment dated 14th March 2024, and the Court of Appeal subsequently declined to grant a stay of execution of the judgment pending appeal in its ruling dated 24th January 2025. While the Applicant was not a party to those proceedings, this Court must be slow, at an interlocutory stage and at the instance of an unsecured creditor, to issue orders whose effect would be to impede the exercise of rights under securities that have already been the subject of previous judicial proceedings.
20. In the circumstances, I am not satisfied that the Applicant has demonstrated an apparent legal or equitable right over the suit properties which has been infringed or threatened with infringement by the 2nd and 3rd Defendants. What emerges is a monetary claim against the 1st Defendant arising from the alleged breach of the service agreement. That claim, without more, cannot found an injunction restraining a secured creditor from enforcing its registered securities.
21. I therefore find that the Applicant has failed to establish a prima facie case with a probability of success against the 2nd and 3rd Defendants. Having so found, it is unnecessary to consider the remaining limbs of irreparable injury and balance of convenience. As held in Nguruman Limited (supra), the conditions for granting an interlocutory injunction are sequential, and failure at the first stage ends the inquiry.
22. For the foregoing reasons, I find that the Notice of Motion dated 4th May 2026 lacks merit and is hereby dismissed. Consequently, any interim orders previously issued restraining the 2nd and 3rd Defendants are hereby discharged.
23. The costs of the application shall abide the outcome of the suit.
It is so ordered.
RULING delivered virtually, dated and signed at NAIROBI
This 1st day of September 2026.
PETER M. MULWA
JUDGE
In the presence of:
Ms. Munguti h/b for Mr. Odira for Plaintiff/Applicant
Mr. Kirimi for 1st Defendant
Mr. Chege for 2nd Defendants
Mr. Tugee for 3rd Defendant
Court Assistant: Sharon