Arlington Heights Ltd & 2 others v Solomgo Enterprises Ltd & another (Environment and Land Case E023 of 2026) [2026] KEELC 3854 (KLR)

1st plaintifi bought two acres at Kshs.5,000,000/=, and the 2nd plaintifi was gifted one acre by the 1st defendant as per copies of the respective agreements and documents attached as NOB-(1), (2), and (3). 3. The plaintifis depose that despite compliance with all the terms and conditions of the sale agreements, including clearing the purchase price, the 1st defendant has failed to transfer the said portion of land. 4. It is averred that instead the 1st defendant has, in bad faith, transferred the entire property to the 2nd defendant, who was issued with a lease certificate on or about 8/10/2024, to defeat the interests of the plaintifis. 5. The plaintifis depose that unless the court intervenes, they stand to sufier irreparable loss as their proprietary interests will be extinguished, given that the land may further be transferred or encumbered, hence the need to preserve it through issuance of the reliefs sought. 6. Thought the defendants were duly served with summons to enter appearance and the application, and an afidavit of service sworn by Maxwell Nangole filed no replying afidavits were filed by the defendants. 7. The plaintifis rely on written submissions dated 30/4/2026. 8. A party seeking temporary orders of injunction has to meet the conditions set out in Giella- vsCassman Brown & Co. Ltd [1973] EA 358. 9. A prima facie case is established whereby, looking at the material placed before the court, a right has been breached, infringed, or threatened with violation to call for a rebuttal from the opposite side as held in Mrao Ltd -vs- First American Bank of (K) Ltd [2003] KLR 125. 10. Irreparable loss or damage is one that may not be quantified in monetary terms or capable of compensation as defined in Nguruman Ltd -vs- Jan Bonde Nielsen & Another & Others [2014] eKLR. 11. Balance of convenience involves weighing the potential harm to the applicant as opposed to the respondent if an injunction is refused and the suit ultimately dismissed, as held in Pius Kipchirchir Kogo -vs- Frank Kimeli Tenai [2018] eKLR. 12. A court does not hold a mini-trial to establish the three ingredients, which in any event must be demonstrated distinctly, sequentially, logically, and separately. Similarly, the court is not required to make a definitive finding as to facts and the law but to see to it, based on the material placed before it by way of afidavits, that more than an arguable case with a probability of success is established by the applicant. 13. The suit by the plaintifis was initiated through a plaint dated 25/3/2026. The principal prayers seek an order of specific performance compelling the transfer of the respective portions of land acquired by the plaintifis from the 1st defendant, LR No. Kitale Municipality Block 6/235, by agreements dated 4/11/2021, 4/12/2021, and 21/1/2023, making the plaintifis lawful and beneficial owners. 14. It is averred that despite performance of all the obligations in the said agreements, the 1st defendant has failed, refused, and or neglected to complete the transfers in favour of the plaintifis and instead proceeded to transfer the land to the 2nd defendant, whose director or shareholders are the same. 15. The plaintifis aver that the said transfer was aimed at defeating their interests and or was subject to constructive or resulting trust in their favour, the 2nd defendant is not a bona fide purchaser for value without notice, the transfer was fraudulent or made in bad faith, and that there was a breach of contract. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3854/eng@2026-06-24 2

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16. The plaint and the supporting afidavit is verified by the afidavit of the 3rd plaintifi. In paragraph 3, he says he has the authority to act for the 1st and 2nd plaintifis. The 1st and 2nd plaintifis are described as limited liability companies. The authority to sue attached is dated 25/3/2025. It is not a board resolution by the directors of the 1st and 2nd plaintifis, duly executed with a seal of the two companies. 17. A copy of the title deed, leases, or search certificate to show that the 1st and 2nd defendants own land title No. Kitale Municipality Block 6/235 has not been attached to the supporting afidavit sworn on 25/2/2026 to substitute the claim for interim orders of injunction. 18. Order 40 Rule 2(1) of the Civil Procedure Rules grants this court powers to restrain a defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, or relating to the property or right. 19. The plaintifis rely on sale agreements attached as NOB-(1), (2), and (3). The sale agreements between the 1st plaintifi and the 1st defendant, dated 4/11/2021, are not witnessed. The space for the witness is blank. The sale agreement dated 23/3/2022 lacks the signature of the director of the 1st defendant. 20. The 3rd plaintifi was not a party to those sale agreements. His name only appears in the sale agreement dated 21/1/2023. The said sale agreement is not signed by the director of the 1st defendant or witnessed by anyone. The spaces are left blank. The plaintifis depose through the 3rd plaintifi that they complied with the said agreements and made full payment. Save for the deposits, the balances were to be channeled through a bank account. 21. The plaintifis have not attached any bank slips or acknowledgement of payments of the balances by the 1st defendant. Material disclosure of all facts is key in seeking equitable reliefs. Evidence of notice of breach of the terms and conditions of the said agreements is not attached in line with the special conditions. 22. Similarly, there is no evidence attached that the plaintifis availed or sought the preparation of the completion documents after the date of clearance of the balance of the purchase price with the vendor. 23. Equity follows the law. It is one of the principles governing the grant of specific performance, as held in Andrew Kiprop Ronoh -vs- Vitalis Sunguti Lingare & Another [2018] KECA 599 KLR. 24. The other underlying principle is granting equitable relief of specific performance, whether the plaintifis have performed all their obligations to be entitled to temporary orders of injunction and inhibition. 25. Compliance with Section 3(3) of the Law of Contract Act, and Section 38 of the Land Act, as regards the existence of a valid sale agreement for transfer form is critical. Delay defeats equity. The date when the breach arose and when the 1st defendant transferred the land to defeat the proprietary interests of the plaintifis is not pleaded in the body of the plaint or at the supporting afidavit of the 3rd plaintifi. 26. Inhibition order must issue based on an attached certificate of lease, title deed, or an oficial search certificate for the court to know as a matter of fact if the land is registered, its status, and under whose names it was at the time when the sale agreements were consummated, and or at the time of filing of the suit. 27. The plaintifis have not told the court whether they are in occupation of the suit properties or the status of their developments, if any, on the suit land as a basis of showing the irreparable loss or damage likely to be sufiered or as a basis of assessing the balance of convenience. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3854/eng@2026-06-24 3

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28. In view of the foregoing, the court finds that the plaintifis have failed to meet the conditions of a temporary injunction. The application is dismissed with costs. 29. Mention on 22/7/2026 for pre-trial conference. Mention notice to issue. 30. Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 24TH DAY OF JUNE 2026. In the presence of: Court Assistant - Dennis No appearance for the parties HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3854/eng@2026-06-24 4

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