Rongai Rhumba House Limited v Ariwi & 8 others; Champagne Point Limited

Introduction 1. The matters for determination before this Court arise from the Notice of Motion Application dated 4th March 2025. The Application is brought pursuant to the provisions of Order 39 Rules 1, 2, 5, and 9 of the Civil Procedure Rules, Sections 1A, 1B, and 3A of the Civil Procedure Act, and all other enabling provisions of the law. 2. By way of the said Motion, the Applicant (the Plainti herein) seeks the following substantive orders: a. An order of injunction restraining the Defendants, their agents, or servants from disposing of, excavating, selling, charging, or otherwise parting with possession of the land known as Title No. Ngong/Ngong/15560 (the Suit Property) pending the inter partes hearing and determination of the Application. b. An Order of Attachment Before Judgment against the Suit Property, formerly registered in the name of the 1st Defendant. c. In the alternative, an order that the 1st Defendant deposits security for costs in the sum of Kes 14,360,000 (or such other sum as determined by the Court) for the due performance of any decree that may be passed against him, failing which the suit property be attached pending judgment. d. That the costs of the Application be borne by the Defendants. 3. The Application is premised on the grounds set out on the face of the Motion and the facts deposed in the Supporting Adavit of Barasa Sindani, a Director of the Plainti company, sworn on 4th March 2025. 4. The Applicant’s case is that on or about 3rd September 2016, the Plainti entered into a lease agreement with the 1st Defendant for the Suit Property. The Plainti avers that it invested approximately Kes 8,000,000 to construct "Rongai Rhumba House" and paid rent dutifully until 2023. 5. The gravamen of the Plainti’s complaint is that the Defendants orchestrated an unlawful eviction and demolition on 12th May 2023, causing loss and damages estimated at Kes 14,360,000 per the valuation report dated 12th July 2023. 6. The Applicant seeks attachment or security for costs on the grounds that the 1st Defendant is a foreign resident (Hong Kong) and has allegedly transferred the Suit Property to the Interested Party (Champagne Point Limited) to defeat the ends of justice and render any potential decree nugatory. 7. The Application is opposed by the 1st Defendant, Shem Ariwi, through a Replying Adavit sworn on 12th March 2025. The 1st Defendant denies the allegations set out in the Application, characterizing them as frivolous, malicious, and an abuse of the court process. 8. The 1st Defendant raises a fundamental objection to the suit, contending that the Application is merely a "second bite at the cherry." He deposes that the Plainti previously led Kajiado ELC Case No. E085 of 2023: Rongai Rhumba House Limited vs. Shem Ariwi & 3 Others seeking identical orders —specically, an injunction to restrain the transfer or charging of the Suit Property. 9. The 1st Defendant avers that the application in the previous suit was heard and dismissed with costs by this Honourable Court on 14th December 2023. He argues that instead of appealing that ruling or prosecuting the substantive suit, the Plainti has led the instant suit (E131 of 2024) to relitigate https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18605/eng@2025-12-18 2

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the same issues. Consequently, he submits that these proceedings amount to litigation by installments and harassment, and is potentially barred by the doctrine of res judicata. 10. Regarding the dissipation of assets, the 1st Defendant maintains that he has not disposed of the property to defeat the Plainti’s claim, but rather engaged in a legitimate commercial transaction. He deposes that he entered into a Sale Agreement with Champagne Point Limited (the Interested Party) on 24th January 2025. The property was sold for a consideration of Kes 22,000,000 (Twenty-Two Million Shillings). The transfer was formally registered on 27th February 2025, and a title deed was issued to the Interested Party. 11. The 1st Defendant asserts that the Interested Party is a bona de purchaser for value without notice. He argues that since the property has already been transferred to a distinct legal entity, the prayers for attachment are legally defective and overtaken by events. 12. On the substantive dispute, the 1st Defendant reiterates that the Plainti’s lease expired on 31st August 2021 and was never renewed. He denies the existence of any "Joint Venture" with the 2nd Defendant and terms the documents relied upon by the Plainti as forgeries. He maintains that at the time of the alleged demolition, the Plainti was in occupation as a trespasser. 13. The 1st Defendant urges the Court to dismiss the Plainti’s application with costs, on the grounds that it is "bad in law," fatally defective due to the transfer of title, and an abuse of court process given the dismissal of the previous similar application. Directions 14. The application was canvassed by way of written submissions. The submission of which have been duly considered in the writing of this ruling. Issues for Determination 15. The issues that commend themselves for determination herein are; a. Whether the plainti’s application meets the threshold for the grant of orders of temporary injunction; and b. Whether the Applicant has made a case for attachment before judgement or security for costs. Analysis and Determination 16. 17. The principles governing the grant of temporary/interlocutory injunctions were settled and enunciated in Giella v Cassman Brown & Co. Ltd [1973] EA 358, namely that the Applicant must demonstrate: I. A prima facie case with a probability of success; II. That he stands to suer irreparable loss not compensable by damages if the injunction is not granted; and III. Where the Court is in doubt, the application is determined on a balance of convenience. A prima facie case was dened in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, as a case which, on the material presented, discloses a right that has been infringed and calls for an explanation from the opposite party. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18605/eng@2025-12-18 3

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18. In the present matter, the Applicant’s claim is founded on an alleged subsisting lease and/or commercial arrangement over the suit property. The 1st Defendant has produced evidence that the lease expired on 31st August 2021 and was never renewed, and that by the time of the alleged eviction and demolition, the Applicant was in occupation without any legal right. These assertions raise contested issues of fact that can only be conclusively resolved at trial. 19. More critically, the suit property has since been transferred and registered in the name of the Interested Party, a fact that is not seriously controverted. An injunction cannot issue in vain or in respect of property no longer registered in the name of the party sought to be restrained. As was held in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, an injunctive relief is discretionary and cannot be granted where the substratum of the application has been overtaken by events. 20. On irreparable harm, the Applicant’s claim is quantied and anchored on an alleged valuation report assessing damages at Kshs. 14,360,000. This is, by its own nature, a claim that is compensable by an award of damages should the suit ultimately succeed. 21. In the circumstances, the Court is not persuaded that the Applicant has established a prima facie case with a probability of success, nor that it stands to suer irreparable harm incapable of compensation by damages. 22. Attachment before judgment is a drastic remedy governed by Order 39 of the Civil Procedure Rules. It is not meant to be used as a tool for coercion or to punish a defendant. The Applicant is obligated to demonstrate, by credible evidence, that the Defendant is about to dispose of or remove his property with the intention of obstructing or delaying the execution of any decree that may be passed against him. 23. The Court of Appeal in Kuria Kanyoko t/a Amigos Bar & Restaurant v Francis Kinuthia Nderu & Others [1988] eKLR, cautioned that attachment before judgment should only issue in the clearest of cases. 24. In the instant case, the evidence before Court shows that the suit property has already been sold and transferred pursuant to a formal sale agreement for a disclosed consideration. If anything, the court takes cognizance of the plainti’s submission that the Suit Property has been transferred to the Interested Party, Champagne Point Limited. As it stands, the property is vested in a separate legal entity. It is trite law that a company is distinct from its shareholders (See Salomon v Salomon). Consequently, an order of attachment against the land itself, would be legally untenable at this interlocutory stage. 25. Similarly, the prayer for security for costs has been framed as an alternative to attachment. Security for costs is ordinarily sought by a defendant against a plainti, and the Applicant has not demonstrated exceptional circumstances warranting its grant against the 1st Defendant. The mere fact that the 1st Defendant is alleged to be resident outside the jurisdiction, without more, does not justify the orders sought. 26. In view of the foregoing analysis, the Court nds that the Notice of Motion Application dated 4th March 2025 lacks merit. The Applicant has failed to satisfy the legal thresholds for the grant of the interlocutory injunctive relief, attachment before judgment, or an order for security for costs. The Application further bears features of an abuse of the court process, given the history of prior similar proceedings. 27. Accordingly, the Court makes the following orders: a. The Notice of Motion Application dated 4th March 2025 is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18605/eng@2025-12-18 4

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b. The costs of the Application are awarded to the 1st Defendant. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 18TH DAY OF DECEMBER 2025. M. D. MWANGI JUDGE In the virtual presence of: Mr. Muchiri h/b for Mr. Waigwa for the Plainti/Applicant N/A by the Defendants/Respondents and the Interested Party Court Assistant: Mpoye https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18605/eng@2025-12-18 5

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