Bathawab Investment Limited v Hassan Ahmed Abdulhafedh Aka Hassan Ahmed Zubedi & 3 others [2016] KEELC 719 (KLR)
The bottom line
#A Nairobi investor who paid US$1.7 million towards a Nairobi property won protection: the High Court froze dealings on the title and sent its dispute with Dubai Bank Kenya to arbitration.
What this practically means
#Executive summary
#Key legal issues
#Whether the notices raised valid preliminary objections
The issues raised were proper preliminary objections, but the 1st Defendant abandoned his by failing to file submissions, and the 3rd Defendant's objections failed because they required ascertainment of facts beyond the pleadings
Applying Mukisa Biscuits and Oraro v Mbaja, the court found the objections raised points of law. However, whether a written sale agreement existed and whether the Plaintiff was an existing entity required factual inquiry from sources outside the pleadings, disqualifying them as pure points of law. The 1st Defendant's objection was not argued and was treated as abandoned and unmerited.
Whether the Plaintiff established a prima facie case with probability of success
Yes - the Investment Agreement dated 23rd November 2012 and evidence of payment of US$1,700,000 into the 2nd Defendant's bank showed a beneficial interest in the suit property
Though the arrangement with the 1st, 2nd and 3rd Defendants was not in writing and the Plaintiff could not be held a purchaser for value, the Investment Agreement between the Plaintiff and the 2nd Defendant evidenced a beneficial interest. Combined with proof of the deposit and evidence that Kshs.254,000,000 funded the purchase, a prima facie case with probability of success was established.
Whether irreparable loss and balance of convenience favoured the injunction
Yes - the Plaintiff would likely suffer irreparable loss not compensable in damages, and the balance of convenience favoured maintaining the status quo
The 2nd Defendant was pursuing registration as sole proprietor pursuant to decisions in HCCC No. 172 of 2012 and JR Misc No. 406 of 2012, which would leave the Plaintiff, having paid US$1,700,000, out of the equation. There was no evidence the Defendants could refund the deposit. The court declined to overturn those decisions but preserved the status quo by restraining the 1st, 2nd and 3rd Defendants from dealing with the property.
Legal principles established
#- A preliminary objection must stem from the pleadings and be based on pure points of law with no facts to be ascertained
- Where an objection requires ascertainment of facts beyond the pleadings, it is not a valid preliminary objection
- A prima facie case means more than an arguable case - it must show an apparent infringement of a right calling for explanation or rebuttal
Court orders
#- 1.Preliminary objections by the 1st and 3rd Defendants dismissed
- 2.Interim injunction restraining the 1st, 2nd and 3rd Defendants (not the 4th Defendant) from transferring, sub-dividing, charging, mortgaging or in any manner interfering with or transacting with the suit premises LR No. 209/10350 Nairobi, so as to maintain the status quo even after implementation of the orders in HCCC No. 172 of 2012 and JR Misc No. 406 of 2012
- 3.Prayer No. 5 of the Notice of Motion dated 23rd April 2015 allowed - reference of the dispute as between the Plaintiff and the 2nd Defendant to arbitration
- 4.Costs in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act; Section 7 of the Arbitration Act 2012; Order 40 Rules 1, 2, 3(3) and 4 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kimani & another v Kenya National Union of Teachers & 3 others (Cause E041 of 2024) [2025] KEELRC 2891 (KLR)[2025] KEELRC 2891 (KLR)24 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Bathawab Investment Limited v Hassan Ahmed Abdulhafedh Aka Hassan Ahmed Zubedi & 3 others [2016] KEELC 719 (KLR)", Case Analysis (2016). High Court Civil Case (Nairobi) – Notice of Motion dated 23rd April 2015 and Notice of Motion dated 30th July 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/719/eng@2016-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.