Dar v Focus Homes Ltd & 2 others (Environment and Land Case E064 of 2026) [2026] KEELC 3894 (KLR)
The bottom line
#A Nairobi apartment buyer who paid in full still lost her bid to block the bank from selling, because the property's charge was never discharged.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff is entitled to orders of interlocutory injunction restraining the Defendants from interfering with the suit apartment
Key legal issues
#Whether the Plaintiff established a prima facie case warranting an interlocutory injunction
No prima facie case was established; the suit property remained charged to the 2nd Defendant and no partial discharge of the Plaintiff's apartment existed
The court applied Giella v Cassman Brown and the Mrao definition of a prima facie case. Although the Plaintiff paid the full purchase price of Kshs. 13,000,000 and possessed the apartment for twelve years, the title over the whole property remained charged to the 2nd Defendant. There was no partial discharge of her apartment, so the court could not separate it from the charged property. The Charge issue had also been dealt with in HCCC 373 OF 2018.
Whether the other Giella limbs (irreparable harm and balance of convenience) required determination
Not determined, because failure of the first limb disposes of the application
Following Nguruman Ltd v Jan Bonde Nielsen, where the applicant fails on the prima facie case limb, the court need not consider irreparable injury or the balance of convenience. The court expressly declined to proceed to the other two limbs and dismissed the application.
Whether the 2nd Defendant's statutory power of sale was superior to the Plaintiff's purchaser's interest
Yes; the charge remained undischarged and the loan unsatisfied, so the chargee remained entitled to recover the full amount owed
The court noted that the 1st Defendant charged the suit property to obtain a construction loan and that the loan remained unpaid despite the Plaintiff's full payment for her apartment. The court accepted the principle from Andrew Muriuki Wanjohi that charged property is a commodity for sale on default, and held the Plaintiff could not escape the charge since her apartment had not been partially discharged.
Whether the suit is res judicata HCCC 373 OF 2018
Raised by the 2nd Defendant but not expressly determined; the court merely noted that HCCC 373 OF 2018 had already dealt with the issue of the Charge
The 2nd Defendant submitted the suit was res judicata HCCC 373 OF 2018, decided by Mulwa J and under appeal. The court did not rule on the res judicata plea as a distinct issue but observed in its analysis that the High Court had already dealt with the issue of the Charge over the suit property in that suit, which had been filed by the 1st Defendant.
Legal principles established
#- Where a party fails to establish a prima facie case on an application for interlocutory injunction, the court need not proceed to consider the other two Giella limbs
- Once a property is offered as security, it becomes a commodity which may be sold on default, and a chargor's loss on sale is calculable on the basis of real market value (Andrew Muriuki Wanjohi principle)
- A purchaser of an apartment on charged land cannot escape the chargee's rights where the charge remains undischarged and there is no partial discharge of the unit purchased
Court orders
#- 1.The Notice of Motion application dated 23rd February 2026 is dismissed
- 2.Costs will be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not expressly stated; first-instance civil suit over land (L.R. No. 37/369 (I.R. No. 69578)), Article 162(2)(b) land jurisdiction implied but not cited in the judgment
Relief refused
#Temporary injunction restraining the Defendants from advertising, attaching, auctioning, selling or dealing with L.R No. 37/369 (I.R No. 69578) including Apartment No. 7, Second Floor, Block B
The Plaintiff failed to establish a prima facie case with a probability of success; the suit property remained charged to the 2nd Defendant with no partial discharge of the suit apartment, and the issue of the Charge had already been dealt with in HCCC 373 OF 2018
Costs of the application borne by the Defendants
The court ordered only that costs be in the cause
Costs
Costs will be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances, I find the instant Notice of Motion application unmerited and will proceed to dismiss it.
Costs will be in the cause.
while associating myself with decisions cited, I find that the Plaintifi has not established a prima facie case to warrant the orders of interlocutory injunction as sought against the Defendants.
the court cannot separate the suit apartment from the Charged property since there is no evidence of partial discharge of the said apartment.
where the Court of Appeal held that where a party has failed to establish a prima facie case, the Court need not proceed to make a determination of the other two limbs on injunction and I will decline to do so.
Issues in the judgment
#The judgment does not state the court name, case number, or neutral citation in the body; court and station are inferred from the delivery venue and subject matter
Internal inconsistency on the caveat registration date: supporting papers refer to 15th September 2017 while submissions refer to 17th September 2017
Contradictory account of to whom the Plaintiff paid the purchase price: the Plaintiff's affidavit implies payment to the 1st Defendant, while the 2nd Defendant and the 1st Defendant's director say the price was remitted to the 2nd Defendant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dar v Focus Homes Ltd & 2 others (Environment and Land Case E064 of 2026) [2026] KEELC 3894 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3894/eng@2026-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.