Pirbhai & another v Middle East Bank Ltd (Environment and Land Case E533 of 2025) [2026] KEELC 5383 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
The plaintiffs established a prima facie case raising several questions for determination, including whether the sale agreement was still binding after the purported rescission
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.
Irreparable injury and balance of convenience
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
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.
Mandatory injunction for specific performance at interlocutory stage
Refused; whether a valid binding contract still exists can only be determined at the full hearing
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.
Order of inhibition under Section 68 of the Land Registration Act
Granted; the plaintiffs have an arguable case and the suit property is at risk of alienation pending determination
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.
Whether the plaintiffs defaulted and forfeited the 10% deposit
This is a triable issue that cannot be resolved at the interlocutory stage
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.
Legal principles established
#- 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
#- 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.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.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.