Chanda & another v Consolidated Bank Ltd & 3 others (Enviromental and Land Originating Summons E025 of 2025) [2025] KEELC 4212 (KLR)
The bottom line
#A Mombasa court blocked a bank from selling Mombasa family land after a charge was supposedly signed by an owner who died in 1986.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants established a prima facie case with a probability of success
Yes - the registered owner died in 1986 and could not have executed a charge in February 2024, so the applicants' alleged right over the unencumbered estate property was apparently infringed.
Both parties agreed the suit property was registered to Solomon Chanda Musili. The death certificate showed he died on 13th June 1986, while the impugned charge was executed on 1st February 2024 and registered on 2nd February 2024. Adopting the Mrao definition, the court found an apparent legal right infringed calling for explanation, since a dead man cannot execute a charge.
Whether the applicants demonstrated irreparable injury not compensable in damages
Yes - an auction would divest the estate of the suit property and spawn fresh, lengthy and expensive litigation with third parties, amounting to irreparable injury.
The applicants feared an intended auction, which the 1st respondent neither confirmed nor denied. They were in transmission of the estate for the benefit of beneficiaries. An auction would transfer the land to third parties, forcing new litigation against the respondents and third parties; such land litigation is expensive and protracted, which the court held would translate into irreparable injury under the Kogo test.
Where the balance of convenience lies
With the applicants - granting the injunction maintains the status quo and represents the lower risk of injustice.
Applying Kogo, Paul Gitonga Wanjau and Amir Suleiman, the court held the lower risk of injustice was to restrain dealings with the property pending full hearing, avoiding the greater harm of prolonged litigation with third parties should the applicants ultimately prevail. The 1st respondent's claim of constructive possession did not outweigh this.
Who bears the costs of the application
Costs were ordered to abide the outcome of the suit, departing from the general rule that costs follow the event.
Section 27 of the Civil Procedure Act provides costs follow the event unless the court orders otherwise. Because the substantive contestations between the parties would only be resolved after the merit hearing, the court exercised its discretion to defer costs.
Legal principles established
#- An interlocutory injunction applicant must sequentially establish a prima facie case, irreparable injury, and that the balance of convenience lies in his favour.
- A registered proprietor who died before an alleged transaction cannot have validly executed a later charge over his property; a charge executed by a deceased person supports a prima facie case of infringement.
- Loss of suit land to third parties through an auction, exposing parties to lengthy fresh litigation over land, constitutes irreparable injury not compensable in damages.
- In interlocutory injunctive relief the court should opt for the lower rather than the higher risk of injustice.
Court orders
#- 1.Allowed the application in terms of prayer (c): pending the hearing of the suit, the 1st and 2nd respondents, by themselves, their servants, agents or otherwise, are restrained from disposing, selling, transferring, charging, leasing or in any other manner disposing of Plot Title Number Mombasa Block XVII/771/A.
- 2.Costs to abide the outcome of the suit.
- Jurisdiction invoked
- Order 40 of the Civil Procedure Rules; Environment and Land Court jurisdiction over the suit land (Plot Title Number Mombasa Block XVII/771/A)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chanda & another v Consolidated Bank Ltd & 3 others (Enviromental and Land Originating Summons E025 of 2025) [2025] KEELC 4212 (KLR)", Case Analysis (2025). ELC Case of 2024 (Notice of Motion dated 20th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4212/eng@2025-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.