PLAINTIFF’S CASE
The applicants have come to this court vide a the notice of motion and supporting affidavit dated 14th January,2026 sworn by Mohsin Ahmed Abdurahman,. The 1st 2nd and 4th respondents are yet to file their response while the 3rd Respondent has filed its Replying Affidavit sworn by one Lawi Sato on 19th January, 2026.
The application is for an injunction to restrain the 1st 2nd 3rd and 4th Defendants their servants, agents, representatives and/or any other person whomsoever or anyone acting under their authority howsoever from further Auctioning, Selling, Disposing, Leasing or interfering with the Land known as Mombasa/Block Xv1/1287 Guraya Area And Mombasa/Block Xv11/1282 pending hearing and determination of the suit. The Applicants were served.
The applicant alleges that on 20th December, 2025, he received a notice from Trevo Auctioneers for an intended auction of Title No. LR No. Mombasa/Block xv1/1287 Guraya Area and Mombasa/Block xv11/1282 Mombasa city, Mombasa County among other properties. That the said notice issued 45days to pay creditors an amount of Kshs. 38,276,666.75/= plus interest. The Defendant in his Replying Affidavit has stated that the Plaintiffs are not the registered owners of the suit property and lack locus standi to challenge a statutory sale.
The applicant has summarized the issues for determination as follows
1. Whether this Honorable court has jurisdiction to determine this suit?
2. Whether the Plaintiffs have locus standi to challenge the statutory sale?
3. Whether the prayers sought in the Applications should be allowed as prayed?
On whether this Honorable court has jurisdiction to determine this suit, the applicant argues that this Honorable court has jurisdiction to determine this suit since the suit is framed as a dispute over ownership rather than a dispute over the charge contract itself. The Plaintiffs on different dates through sale agreements purchased different apartments on the building standing on the suit properties. Further the 1st and 2nd Defendants fraudulently proceeded to take a loan with the 3rd Defendant without the consent of the Plaintiffs. The 4th Defendant upon service of notice did not attach a valuation report confirming valuation of the property contrary to section 97 of the Land Act and neither did the 3rd Defendant attach a copy of the same in their replying Affidavit thus a breach of compliance with the land Act and a further exception of this court's jurisdiction to entertain this suit.
The applicant argues that the gist of the prayers sought in this suit is not to challenge the charge contract itself but for ownership of the apartments and damages among other prayers. The lst and 2nd Defendants did not register the joint venture agreement thus an exception to this court to entertain this dispute. The Plaintiffs to date have not received their sectional titles and their efforts to do so have been frustrated by the 1st and 2nd Defendants.
The Plaintiffs further submit that they have beneficial ownership and or constructive trust because the Plaintiffs are the apartment owners and they have paid for their units and are in possession under a joint venture thus they have a beneficial interest or a constructive trust over the land.
The Environment and Land Court handles land issues hence this Honorable court has jurisdiction to entertain this dispute and for the interest of justice remedy and or protect the rights and the equitable interests of the apartment owners.
On the issue as to whether the Plaintiffs have locus standi to challenge the statutory sale, the Plaintiffs/Applicants submit that they have locus standi to challenge the statutory sale. They reiterate that they have beneficial ownership and or constructive trust because the Plaintiffs are the apartment owners and they have paid for their units and are in possession under a joint venture thus they have a beneficial interest or a constructive trust over the land. Therefore, for the interest of justice they have locus standi to challenge the statutory sale and seek a remedy and or protect their rights and the equitable interests of their apartment owners.
The applicants sought injunctive orders and inhibition orders in their Application. They rely on the well-known case of Giella vs Casman Brown which outlines the instances in which an order of injunction is granted.
The applicants further rely on the case of Sharok Kher Mohamed Ali & Another V Southern Credit Banking Corporation Limited [2008] eKLR where the court stated that:
"I am satisfied a party deprived of his property through an illegal process would suffer irreparable loss and/or damage. In any case a party entitled to a legal right cannot be made to take damages in lieu of his right. In essence the damages and/or loss that would be suffered by the plaintiffs would be significant in an injunction is not granted.”
The plaintiffs contend that is that a party in contravention of the law cannot be rewarded for his contravention. Refusing an injunction in the circumstances of this case will fly in the clear provisions of the law. The applicant further submits that law does not condemn a party to suffer a loss in the hope that he will be fully compensated in the future. In this case, the Plaintiffs/Applicants are apprehensive that the Defendants/Respondents will proceed with the statutory sale against the 1st Defendant/Respondent for failing to pay the alleged loan amount which loan was taken without the consent of the Applicants as owners of different apartments and as prevention is better than cure, they request the court to issue the orders prayed for herein pending the hearing and determination of this suit.
The plaintiff submits that in dealing with application for injunctions, the court is vested with wide and unfettered discretionary powers and in the interest of justice and to protect the Applicants right to ownership, there is a need to resolve the matter at the earliest possible opportunity. In the circumstances, they appeal to the court to deal with this matter and allow the application as prayed.
3 Rd Defendant's Case
The 3rd defendant argues that over a decade since Moses Lutomia Washiali v Zephaniah Ngaira Angweye & another [20181 KECA 640 (KLR) pointed out that it is a foolhardy rather than a diligent person who purchases land with the alacrity of a potato dealer at Wakulima market", the Plaintiffs have done exactly that in this matter.
In this case, the Plaintiffs seek an injunction to restrain, primarily the 3 rd Defendant, from selling Mombasa/BIock XVI/1/1287 and Mombasa/Block 11/1282 (the "Suit Properties") in the exercise of its statutory power as a chargee. The 3rd Defendant swore a Replying Affidavit on 19th January 2026 opposing the request.
The 3rd Defendant contends that the Plaintiffs lack locus to question its exercise of the statutory power of sale and, if they have locus, they should take their grievances to the High Court. On the merits, the 3 rd Defendant says the Suit Properties were offered as security to secure advances to the 1st Defendant. A legal charge was registered over Mombasa/Block XVII/1282 on 21st September 2021, and over Mombasa/Block XVI/1287 on 22nd June 2023. Since the Plaintiffs' purchases, even if true, came after the legal charges, the 3rd Defendant's rights are superior. The 3rd Defendant adds that none of the sales was registered against the titles to the Suit Properties. Since the legal charges were, on the other hand registered, the Plaintiffs' unregistered interests cannot curtail the 3rd defendant's registered rights.
The 3rd respondent argues that the Environment and Land Court lacks jurisdiction to entertain the suit. He relies on the case of Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [20171 KECA 79 (KLR) made it clear that the mere charging of land does not constitute use of land as to bring it within the ELC's jurisdiction. The Court of Appeal in Diamond Trust Bank Kenya Limited v FHH [20221 KECA 769 (KLR) maintained that view even where the challenge was by a third party, and not the chargor.
Looking at the pleadings here, the Plaintiffs accept that the 1st & 2nd Defendants are the registered owners of the Suit Properties which are charged to the 3rd Defendant. The sole question therefore is whether their interests as purchasers would defeat the 3rd Defendant's charge.
The respondent sees nothing that requires the ELC to interrogate "the use and occupation of, and title to, land", the very ingredients that Article 162(2)(b) of the Constitution demands before the ELC's jurisdiction can be invoked,
The 3rd respondent further argues that the plaintiffs lack locus standi to sue. Where purchasers have challenged the statutory power of sale, the courts' response, which can be gleaned from Maheshkumar Popatlal Shah v Highgrove Holdings Limited & another [20211 KEHC 9227 (KLR), has been this;
Since the bank was not privy to the purported Agreement between the Plaintiff and the 1st Defendant it cannot held liable under it. Therefore it is only the 1st Defendant who can seek to restrain the Bank from exercising its statutory power of sale. The Plaintiffs remedy in law lies against the 1st Defendant and not as against the Bank.
The sales to the Plaintiffs happened on 17th September 2017 when the charge was in place. It is prudent for a potential purchaser of land to carry out a search over the property before contracting.
Analysis and Determination
I have considered the rival submissions in this matter and do find that the dispute herein revolves on the purchase by the plaintiffs of land that was charged to a bank, the 3rd defendant. The plaintiffs are not the registered owners of the land but are purchasers from the 1st and 2nd defendants who had charged the land to the Gulf Africa bank Ltd. The bank has instructed the auctioneer to realize the security because the owners of the land have defaulted in the payment of the loan. The plaintiffs are not claiming the use of the land against the 3rd defendant but are alleging a constructive trust having purchased the land from the 1st and 2nd defendants. The Court of Appeal has held in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [20171 KECA 79 (KLR) made it clear that the mere charging of land does not constitute use of land as to bring it within the ELC's jurisdiction. The dominant factor in this matter is the charge of the land in dispute to the 3rd defendant. The plaintiffs are seeking to restrain the 3rd defendant from exercising its statutory power of sale and therefore it remains dominantly a commercial dispute.
In Diamond Trust Bank Kenya Limited v FHH [20221 KECA 769 (KLR) the Court of Appeal where a spouse intended to stop an auction due to spousal interest, the court held:-
“ In the present case, although the respondent is not privy to the instrument of legal charge,there is no doubt what the respondent is seeking before the ELC is to restrain the bank from exercising its statutory power of sale. That is in ouer view following the decision of Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna and 5 Others(supra) is a commercial matter for adjudication before the High Court.”
The upshot of the above is to down my tools and transfer the matter to the High Court to the presiding judge to give directions. Matter to be mentioned before the pressing Judge high court on 22nd April 2026 at 9.00 am.No order as to costs.
The applicants have come to this court vide a the notice of motion and supporting affidavit dated 14th January,2026 sworn by Mohsin Ahmed Abdurahman,. The 1st 2nd and 4th respondents are yet to file their response while the 3rd Respondent has filed its Replying Affidavit sworn by one Lawi Sato on 19th January, 2026.
The application is for an injunction to restrain the 1st 2nd 3rd and 4th Defendants their servants, agents, representatives and/or any other person whomsoever or anyone acting under their authority howsoever from further Auctioning, Selling, Disposing, Leasing or interfering with the Land known as Mombasa/Block Xv1/1287 Guraya Area And Mombasa/Block Xv11/1282 pending hearing and determination of the suit. The Applicants were served.
The applicant alleges that on 20th December, 2025, he received a notice from Trevo Auctioneers for an intended auction of Title No. LR No. Mombasa/Block xv1/1287 Guraya Area and Mombasa/Block xv11/1282 Mombasa city, Mombasa County among other properties. That the said notice issued 45days to pay creditors an amount of Kshs. 38,276,666.75/= plus interest. The Defendant in his Replying Affidavit has stated that the Plaintiffs are not the registered owners of the suit property and lack locus standi to challenge a statutory sale.
The applicant has summarized the issues for determination as follows
1. Whether this Honorable court has jurisdiction to determine this suit?
2. Whether the Plaintiffs have locus standi to challenge the statutory sale?
3. Whether the prayers sought in the Applications should be allowed as prayed?
On whether this Honorable court has jurisdiction to determine this suit, the applicant argues that this Honorable court has jurisdiction to determine this suit since the suit is framed as a dispute over ownership rather than a dispute over the charge contract itself. The Plaintiffs on different dates through sale agreements purchased different apartments on the building standing on the suit properties. Further the 1st and 2nd Defendants fraudulently proceeded to take a loan with the 3rd Defendant without the consent of the Plaintiffs. The 4th Defendant upon service of notice did not attach a valuation report confirming valuation of the property contrary to section 97 of the Land Act and neither did the 3rd Defendant attach a copy of the same in their replying Affidavit thus a breach of compliance with the land Act and a further exception of this court's jurisdiction to entertain this suit.
The applicant argues that the gist of the prayers sought in this suit is not to challenge the charge contract itself but for ownership of the apartments and damages among other prayers. The lst and 2nd Defendants did not register the joint venture agreement thus an exception to this court to entertain this dispute. The Plaintiffs to date have not received their sectional titles and their efforts to do so have been frustrated by the 1st and 2nd Defendants.
The Plaintiffs further submit that they have beneficial ownership and or constructive trust because the Plaintiffs are the apartment owners and they have paid for their units and are in possession under a joint venture thus they have a beneficial interest or a constructive trust over the land.
The Environment and Land Court handles land issues hence this Honorable court has jurisdiction to entertain this dispute and for the interest of justice remedy and or protect the rights and the equitable interests of the apartment owners.
On the issue as to whether the Plaintiffs have locus standi to challenge the statutory sale, the Plaintiffs/Applicants submit that they have locus standi to challenge the statutory sale. They reiterate that they have beneficial ownership and or constructive trust because the Plaintiffs are the apartment owners and they have paid for their units and are in possession under a joint venture thus they have a beneficial interest or a constructive trust over the land. Therefore, for the interest of justice they have locus standi to challenge the statutory sale and seek a remedy and or protect their rights and the equitable interests of their apartment owners.
The applicants sought injunctive orders and inhibition orders in their Application. They rely on the well-known case of Giella vs Casman Brown which outlines the instances in which an order of injunction is granted.
The applicants further rely on the case of Sharok Kher Mohamed Ali & Another V Southern Credit Banking Corporation Limited [2008] eKLR where the court stated that:
"I am satisfied a party deprived of his property through an illegal process would suffer irreparable loss and/or damage. In any case a party entitled to a legal right cannot be made to take damages in lieu of his right. In essence the damages and/or loss that would be suffered by the plaintiffs would be significant in an injunction is not granted.”
The plaintiffs contend that is that a party in contravention of the law cannot be rewarded for his contravention. Refusing an injunction in the circumstances of this case will fly in the clear provisions of the law. The applicant further submits that law does not condemn a party to suffer a loss in the hope that he will be fully compensated in the future. In this case, the Plaintiffs/Applicants are apprehensive that the Defendants/Respondents will proceed with the statutory sale against the 1st Defendant/Respondent for failing to pay the alleged loan amount which loan was taken without the consent of the Applicants as owners of different apartments and as prevention is better than cure, they request the court to issue the orders prayed for herein pending the hearing and determination of this suit.
The plaintiff submits that in dealing with application for injunctions, the court is vested with wide and unfettered discretionary powers and in the interest of justice and to protect the Applicants right to ownership, there is a need to resolve the matter at the earliest possible opportunity. In the circumstances, they appeal to the court to deal with this matter and allow the application as prayed.
3 Rd Defendant's Case
The 3rd defendant argues that over a decade since Moses Lutomia Washiali v Zephaniah Ngaira Angweye & another [20181 KECA 640 (KLR) pointed out that it is a foolhardy rather than a diligent person who purchases land with the alacrity of a potato dealer at Wakulima market", the Plaintiffs have done exactly that in this matter.
In this case, the Plaintiffs seek an injunction to restrain, primarily the 3 rd Defendant, from selling Mombasa/BIock XVI/1/1287 and Mombasa/Block 11/1282 (the "Suit Properties") in the exercise of its statutory power as a chargee. The 3rd Defendant swore a Replying Affidavit on 19th January 2026 opposing the request.
The 3rd Defendant contends that the Plaintiffs lack locus to question its exercise of the statutory power of sale and, if they have locus, they should take their grievances to the High Court. On the merits, the 3 rd Defendant says the Suit Properties were offered as security to secure advances to the 1st Defendant. A legal charge was registered over Mombasa/Block XVII/1282 on 21st September 2021, and over Mombasa/Block XVI/1287 on 22nd June 2023. Since the Plaintiffs' purchases, even if true, came after the legal charges, the 3rd Defendant's rights are superior. The 3rd Defendant adds that none of the sales was registered against the titles to the Suit Properties. Since the legal charges were, on the other hand registered, the Plaintiffs' unregistered interests cannot curtail the 3rd defendant's registered rights.
The 3rd respondent argues that the Environment and Land Court lacks jurisdiction to entertain the suit. He relies on the case of Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [20171 KECA 79 (KLR) made it clear that the mere charging of land does not constitute use of land as to bring it within the ELC's jurisdiction. The Court of Appeal in Diamond Trust Bank Kenya Limited v FHH [20221 KECA 769 (KLR) maintained that view even where the challenge was by a third party, and not the chargor.
Looking at the pleadings here, the Plaintiffs accept that the 1st & 2nd Defendants are the registered owners of the Suit Properties which are charged to the 3rd Defendant. The sole question therefore is whether their interests as purchasers would defeat the 3rd Defendant's charge.
The respondent sees nothing that requires the ELC to interrogate "the use and occupation of, and title to, land", the very ingredients that Article 162(2)(b) of the Constitution demands before the ELC's jurisdiction can be invoked,
The 3rd respondent further argues that the plaintiffs lack locus standi to sue. Where purchasers have challenged the statutory power of sale, the courts' response, which can be gleaned from Maheshkumar Popatlal Shah v Highgrove Holdings Limited & another [20211 KEHC 9227 (KLR), has been this;
Since the bank was not privy to the purported Agreement between the Plaintiff and the 1st Defendant it cannot held liable under it. Therefore it is only the 1st Defendant who can seek to restrain the Bank from exercising its statutory power of sale. The Plaintiffs remedy in law lies against the 1st Defendant and not as against the Bank.
The sales to the Plaintiffs happened on 17th September 2017 when the charge was in place. It is prudent for a potential purchaser of land to carry out a search over the property before contracting.
Analysis and Determination
I have considered the rival submissions in this matter and do find that the dispute herein revolves on the purchase by the plaintiffs of land that was charged to a bank, the 3rd defendant. The plaintiffs are not the registered owners of the land but are purchasers from the 1st and 2nd defendants who had charged the land to the Gulf Africa bank Ltd. The bank has instructed the auctioneer to realize the security because the owners of the land have defaulted in the payment of the loan. The plaintiffs are not claiming the use of the land against the 3rd defendant but are alleging a constructive trust having purchased the land from the 1st and 2nd defendants. The Court of Appeal has held in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [20171 KECA 79 (KLR) made it clear that the mere charging of land does not constitute use of land as to bring it within the ELC's jurisdiction. The dominant factor in this matter is the charge of the land in dispute to the 3rd defendant. The plaintiffs are seeking to restrain the 3rd defendant from exercising its statutory power of sale and therefore it remains dominantly a commercial dispute.
In Diamond Trust Bank Kenya Limited v FHH [20221 KECA 769 (KLR) the Court of Appeal where a spouse intended to stop an auction due to spousal interest, the court held:-
“ In the present case, although the respondent is not privy to the instrument of legal charge,there is no doubt what the respondent is seeking before the ELC is to restrain the bank from exercising its statutory power of sale. That is in ouer view following the decision of Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna and 5 Others(supra) is a commercial matter for adjudication before the High Court.”
The upshot of the above is to down my tools and transfer the matter to the High Court to the presiding judge to give directions. Matter to be mentioned before the pressing Judge high court on 22nd April 2026 at 9.00 am.No order as to costs.