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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 642 (KLR)

Musembi v Nazziwa Investments Limited & another (Environment and Land Case E392 of 2025) [2026] KEELC 642 (KLR)

Environment and Land Court
6 February 2026
TMT. Murigi
3,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Nairobi court froze Kshs. 65 million in a joint account to protect a refund claim, but refused to block the property's sale because the buyer had already terminated the contract.

What this practically means

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Executive summary

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By a Notice of Motion dated 1st August 2025, the Plaintiff sought an order compelling I&M Bank Kenya to transfer Kshs. 65,000,000 paid under a sale agreement for Villa No. 3 on L.R. No. 3734/1444, Kileleshwa, into an interest-earning joint account of the parties' advocates, and a temporary injunction restraining the Defendants from selling, transferring or dealing with the property pending trial. The Plaintiff averred she paid Kshs. 65 million of the Kshs. 75.5 million purchase price, then terminated the agreement by completion notices dated 15th and 16th January 2025 over alleged material defects and denial of inspection access, but the Defendants refused to refund. The Defendants denied misrepresentation, relied on clause 12 acknowledging inspection, contended the termination was invalid, and argued the application was tainted by material non-disclosure and sought to evade contractual obligations. The court framed two issues. Applying the higher threshold for mandatory interlocutory injunctions, it held the funds were the subject matter of the suit and at real risk of dissipation if left under one party's unilateral control, and granted the mandatory preservation order. However, on the injunctive prayer, the court found that having pleaded termination and claiming only a refund and damages, the Plaintiff disclaimed any subsisting interest in the land, rendering the dispute purely monetary; she thus failed to establish a prima facie case with a probability of success under Giella and Mrao, and the other limbs fell away per Nguruman and Afraha Education Society. The application partially succeeded: the injunction was dismissed, the mandatory transfer order issued with fourteen days for compliance, and the Applicant was awarded costs.

Key legal issues

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01

Whether the mandatory order to preserve Kshs. 65,000,000 in a joint interest-earning account should issue

Holding

Yes - the funds are the subject matter of the suit and are at risk of dissipation if left under the unilateral control of one party

Reasoning

The court held the threshold for a mandatory interlocutory order was met because the disputed sum, if released to or retained by one party, could be dissipated, rendering any eventual judgment nugatory. The order merely places the funds in neutral custody, is reversible, and does not prejudice the Defendants beyond temporary loss of control.

p. 6
02

Whether a temporary injunction should issue over the suit property

Holding

No - the Plaintiff, having pleaded termination of the sale agreement and claimed only a refund and damages, disclaimed any interest in the land and failed to establish a prima facie case

Reasoning

The court applied Mrao's definition of a prima facie case and the sequential Nguruman test. Since the Plaintiff sought no proprietary relief (specific performance, transfer or possession), the dispute was no longer a rights-in-land dispute but a purely monetary claim; accordingly she had no prima facie case and the other Giella limbs fell away per Afraha Education Society.

p. 7

Legal principles established

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  • A mandatory injunction at the interlocutory stage requires a higher threshold than a prohibitory injunction and will not normally be granted absent special circumstances
  • Where a party has terminated a sale contract and claims only a refund, the dispute is monetary and no proprietary interest in the land remains to support an injunction over the property
  • The three Giella conditions must be satisfied sequentially; failure on the first (prima facie case) renders consideration of the other limbs unnecessary

Court orders

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  1. 1.The prayer seeking a temporary injunction restraining the Defendants from selling, transferring, charging, or otherwise dealing with the suit property is dismissed
  2. 2.A mandatory order is issued compelling I&M Bank Kenya Limited to transfer the sum of Kenya Shillings Sixty-Five Million (Kshs. 65,000,000/=) into an interest-earning joint account in the names of the advocates for the Plaintiff and the Defendants, to be held pending the hearing and determination of the suit
  3. 3.The transfer of the said sum shall be effected within fourteen days from the date hereof, failing which the Plaintiff shall be at liberty to apply
  4. 4.The Applicant is awarded costs of the application
Jurisdiction invoked
Articles 40 and 159(2)(d) of the Constitution of Kenya; Section 13(2) and 13(7) of the Environment and Land Act; Section 1A & 3A of the Civil Procedure Act; Order 51 Rule 1 and Order 3 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musembi v Nazziwa Investments Limited & another (Environment and Land Case E392 of 2025) [2026] KEELC 642 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/642/eng@2026-02-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.