Capstone Heights Realtors Limited v Kigwor Kenya Ltd (Environment & Land Case E296 of 2024) [2025] KEELC 2865 (KLR)
The bottom line
#A Kenyan court froze KES 66 million in a property deposit in a joint bank account, refusing to order an immediate refund before trial.
What this practically means
#Executive summary
#Key legal issues
#Applicable principles for grant of a mandatory injunction at interlocutory stage
Giella v Cassman Brown principles apply but the standard is higher: the prima facie case must be 'so special' as to persuade the court the orders ought to issue at once, or the injustice balance must clearly favour grant.
The court distinguished prohibitory from mandatory injunctions, noting prohibitory ones preserve the status quo while mandatory ones undo situations, carrying greater risk of injustice. Drawing on Films Rover, Locabail, Shepherd Homes and Kenyan authorities, it held the claimant must show a prima facie case with a higher degree of assurance, or that refusing would cause injustice outweighing that of granting.
Whether a refund of KES 66,025,120 could be compelled at the interlocutory stage
No. The refund claim was disputed and unsupported by evidence; the Deed of Variation did not provide for refund on termination.
The Plaintiff claimed monies paid had been released to and utilized by the Defendant, but produced no evidence. The Deed of Variation provided the KES 66,025,120 was to be held by the Vendor's Advocates under stakeholder terms pending completion, not refunded. A refund order now would risk greater injustice if not vindicated at trial.
Preservation of the stakeholder-held deposit
A mandatory injunction preserving the KES 66,025,120 by deposit in a joint interest-earning account of counsel was warranted because the parties disagreed on where the money was and who held it.
Since the sum was to be held by the Vendor's Advocates under stakeholder terms pending completion and the parties were not in agreement on its whereabouts, preservation was necessary to prevent dissipation pending trial. The court found the Vendor's Advocate was aware he held the money under stakeholder terms, justifying preservation rather than refund.
Legal principles established
#- The threshold for an interlocutory mandatory injunction is higher than for a prohibitory injunction: the claimant must establish a special case giving the court a high degree of assurance, or show that the risk of injustice in refusing sufficiently outweighs the risk in granting.
- The overriding consideration is which course carries the least risk of injustice if it turns out to be wrong.
Court orders
#- 1.A mandatory injunction compelling the Defendant/Respondent to immediately deposit in a joint interest earning account in the names of the Counsels for the Plaintiff and the Defendant the sum of KES 66,025,120.00 until the hearing and determination of the suit
- 2.Costs to abide the outcome of the suit
- Jurisdiction invoked
- Order 40 Rule 2, 11; Order 51 Rule 1, 3 & 11 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3 & 63(e) of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Capstone Heights Realtors Limited v Kigwor Kenya Ltd (Environment & Land Case E296 of 2024) [2025] KEELC 2865 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (Notice of Motion dated 18/07/2024 in pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2865/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.