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ELCPartially AllowedELCLC NO. E533 OF 2025· [2026] KEELC 5383 (KLR)

Pirbhai & another v Middle East Bank Ltd (Environment and Land Case E533 of 2025) [2026] KEELC 5383 (KLR)

Environment and Land Court
3 September 2026
3,716 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Nairobi court froze all dealings with a disputed Nairobi property pending trial, but refused to force its transfer to the buyers just yet.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court on a notice of motion dated 21st October 2025 by the plaintiffs, purchasers at a public auction conducted by the defendant as chargee on 21st November 2023 of LR No. 209/8619, Industrial Area, Nairobi, for Kshs.195,000,000/- with a 10% deposit of Kshs.19,500,000/- paid and a memorandum of sale executed. Completion stalled owing to injunctions in HCCC No. E594 of 2023 (Arboretum Plaza Ltd v Middle East Bank Kenya Ltd & 4 Others), dismissed on 31st July 2025. The plaintiffs sought temporary and mandatory injunctions and orders of inhibition; the defendant contended the plaintiffs had rescinded the agreement by letters of 4th and 14th October 2024, forfeiting the deposit under the default clause. The court, per Hon. C.G. Mbogo, J, found a prima facie case with triable issues on whether the contract subsisted and whether the deposit was forfeited, held the loss of the deposit and property irreparable, and found the balance of convenience favoured preservation. It declined the mandatory injunction for specific performance as premature but granted a temporary injunction and an order of inhibition over the suit property pending hearing and determination of the suit, with costs in the cause.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

The plaintiffs established a prima facie case raising several questions for determination, including whether the sale agreement was still binding after the purported rescission

Reasoning

It was not in dispute that the 1st plaintiff was the successful bidder, a memorandum of sale was executed on 21st November 2023, and a 10% deposit was paid. The dispute was whether the contract subsisted after the plaintiffs' letters of 4th and 14th October 2024 rescinding the sale and the defendant's forfeiture of the deposit. The court held this was a triable issue warranting preservation orders.

p. 16
02

Irreparable injury and balance of convenience

Holding

Loss of Kshs.19,500,000/- and of the suit property is irreparable harm; the defendant holds both the deposit and the property, so the balance of convenience favours a temporary injunction

Reasoning

Applying Nguruman, the court found the injury actual, substantial and not adequately compensable in damages, since the defendant holds both the 10% deposit and the suit property. Preservation pending full hearing was therefore appropriate.

p. 17
03

Mandatory injunction for specific performance at interlocutory stage

Holding

Refused; whether a valid binding contract still exists can only be determined at the full hearing

Reasoning

The court applied Joseph Kaloki (citing Kenya Breweries v Okeyo and Shariff Abdi Hassan v Nadhif Jama Adan), holding that mandatory injunctions are granted at the interlocutory stage only where the party against whom it is sought is clearly on the wrong and special circumstances exist. Here the subsistence of the contract was in dispute.

p. 12
04

Order of inhibition under Section 68 of the Land Registration Act

Holding

Granted; the plaintiffs have an arguable case and the suit property is at risk of alienation pending determination

Reasoning

Applying Peter Kariuki Njue and Japhet Kaimenyi M'Ndutho, the court found the property at risk of disposal, that refusal would render the suit nugatory, and that the plaintiffs had an arguable case; inhibition preserves the property until further order.

p. 19
05

Whether the plaintiffs defaulted and forfeited the 10% deposit

Holding

This is a triable issue that cannot be resolved at the interlocutory stage

Reasoning

The memorandum of sale provided for forfeiture of the deposit if the balance was not paid within 90 days. The plaintiffs' own letters rescinded the sale and demanded refunds, but whether they were in default and whether the deposit was lawfully forfeited were matters for the full hearing.

p. 11

Legal principles established

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  • A mandatory injunction should not normally be granted at the interlocutory stage in the absence of special circumstances, even where the case appears clear
  • The loss of a suit property and the deposit held by the other party constitutes irreparable harm, and preservation of the property tilts the balance of convenience towards granting a temporary injunction

Court orders

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  1. 1.Pending the hearing and determination of the suit, a temporary injunction restraining the defendant/respondent, its directors, agents, employees, servants, clients or whomsoever, from trespassing, interfering, dealing, developing, wasting and/or damaging or dealing in any manner whatsoever with L.R. no. 209/8619
  2. 2.Pending the hearing and determination of the suit, an order of inhibition inhibiting any dealings with L.R. no. 209/8619 either by way of transfer, sale, lease, charge or otherwise
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 48, 50, 159, 162(2)(b), 165
  • Civil Procedure ActSections 1A, 1B, 3A, 63(c) & (e)
  • Civil Procedure RulesOrder 40 rule 1, Order 51
  • Environment and Land Court ActSection 13
  • Land Registration ActSection 68(1)

Cases cited (10)

  • Arboretum Plaza Ltd v Middle East Bank Kenya Limited & 4 Others
    HCCC No. E594 of 2023
  • Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma
    [2020] eKLR
  • Kenya Breweries Limited & another vs. Washington O. Okeyo
    [2002] eKLR
  • Shariff Abdi Hassan vs. Nadhif Jama Adan
    [2006] eKLR
  • Giella vs Cassman Brown & Company Limited
    (1973) E.A 358
  • Mrao Ltd V First American Bank Of Kenya Limited And 2 Others
    [2003] eKLR
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Peter Kariuki Njue v Severina Njira Kithumbu & another
    [2020] eKLR
  • Shivabhai Patel v Manibhai Patel
    [1959] EA 907
  • Japhet Kaimenyi M'Ndutho vs M'ndatho M'Mbwiria
    [2012] eKLR
Jurisdiction invoked
Articles 40, 48, 50, 159, 162(2)(b) and 165 of the Constitution; Sections 1A, 1B, 3A and 63(c) & (e) of the Civil Procedure Act; Order 40 and 51 of the Civil Procedure Rules; Section 13 of the Environment and Land Court Act; Section 68(1) of the Land Registration Act

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, "Pirbhai & another v Middle East Bank Ltd (Environment and Land Case E533 of 2025) [2026] KEELC 5383 (KLR)", Case Analysis (2026). ELCLC NO. E533 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5383/eng@2026-09-03

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