Said v Somsky Construction Company Ltd

d. Costs of this application be awarded to the Plainti/Applicant. 2. The application is premised on grounds on its face and on the Plainti’s supporting adavit. He avers that by two separate sale agreements dated 8th November 2024, the Defendant agreed to sell to him o plan of two properties, being a four (4) Bedroom Duplex Apartment Plus DSQ Type B6 on 14th and 15th Floor, herein referred to as the ‘rst property’, and a four (4) Bedroom Duplex Apartment Plus DSQ Type B6 on 14th and 15th Floor, herein referred to as ‘the second property’. He contends that both properties were to be erected on Title Numbers Nairobi Block 104/525, Nairobi Block 104/526, Nairobi Block 104/527, Nairobi Block 104/528, Nairobi Block 104/529, Nairobi Block 104/530, Nairobi Block 104/351, Nairobi Block 104/532, Nairobi Block 104/533, Nairobi Block 104/534 and Nairobi Block 104/535. 3. He claims that the sale price for the rst property was USD 125,000 out of which he paid a deposit of USD 100,000 in cash while the balance of USD 25,000 was payable upon completion. Further, that the purchase price of the second property was USD 110,000 out of which he paid a deposit of USD 100,000 in cash, while the balance of USD 10,000 was payable upon completion. He contends that the Defendant acknowledged receipt of the deposit. 4. He avers that construction of the two properties is now complete but the Defendant has declined to accept the balance of the purchase price and has refused to hand over vacant possession. Further, that it has placed the two properties in the market and as a consequence of the Defendant’s said conduct, he has suered loss and damages as he had secured funds on the Defendant’s misrepresentation that he would sell the properties to him. He contends that if the two properties are sold, he will suer great damage and prejudice. Response 5. The application is opposed by the Defendant vide the replying adavit of its director, one Muhyidin Mohamed Dhuhullow. He avers that the Plainti’s adavit in support of the application is defective and ought to be expunged, on the basis that it is improperly executed by way of initials which are distinct from the Plainti’s signature appearing in the impugned sale agreements. 6. While he admits that the Defendant executed the agreements for sale dated 8th November 2024, he contends that it did so as a guarantor in favour of a third party, one Mohamed Maalim Hassan, subject to certain conditions, which were never fullled. He claims that in September 2024, the said Mohammed Maalim Hassan informed him that he was indebted to the Plainti in the sum of USD 200,000 which he requested the Defendant, which was undertaking a development project on Nairobi/Block 104/918 to stand in as his guarantor by oering the rst and second properties as security. The Plainti and the Defendant then executed the impugned agreements to give eect to the arrangement. 7. He claims that their understanding was that Mohamed Maalim Hassan would pay the purchase price for the rst and second properties in lieu of settling the debt owed to the Plainti. Further, that it was an express term of the parties agreement that in the event Mohammed Maalim Hassan failed to make payment, the Defendant would be at liberty to cancel and rescind the said agreements while the Plainti would be at liberty to pursue recovery of his debt from the Mohammed Maalim Hassan. He annexed an adavit sworn by the said Mohammed Maalim Hassan on 10th March 2026, explaining the arrangement. 8. He insists that Mohamed Maalim Hassan has not paid any consideration for the two properties. On a without prejudice basis, he avers that Clause 11.7 of the impugned agreements stipulates that where the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5577/eng@2026-09-23 2

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vendor is alleged to be in default, the purchaser is required to issue a Notice demanding that the vendor remedies the alleged default within fourteen (14) days and no such notice was issued. He contends that it is untenable for the Plainti to seek injunctive orders against the Defendant who is the registered proprietor of the two properties in dispute yet he is neither in possession nor occupation. 9. In response to the Defendant’s reply, the Plainti led a supplementary adavit. He reiterates his adavit in support of his Notice of Motion and contends that the impugned sale agreements identify him as purchaser, contain all essential terms of a contract for sale and create privity of contract between the Defendant, thus he is a stranger to the arrangement between the Defendant and one Mohamed Maalim Hassan. Further, that if the intention of the parties had been that the impugned agreements for sale refer to a guarantor, such would have been captured. He also insists that the Defendant acknowledged the deposits he paid and as such, the adavit of Mohamed Maalim Hassan is an afterthought, sworn on 30th March 2026, way after the agreements for sale had been executed thus it cannot alter them. He also avers that the allegation that his adavit in support of his Notice of Motion is defective is a mere technical objection which does not go to the substance of the dispute and should not defeat the ends of justice. 10. The application was canvassed by way of written submissions. Submissions 11. The Plainti submits that he has met the threshold for grant of injunctions, as set out in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358. Further, that he has demonstrated a contractual interest in the two suit properties, deserving the protection of this Court. He insists that the Defendant voluntarily executed the impugned sale agreements dated 8th November 2024, in his favour as the vendor of the two suit properties and that it acknowledged receipt of deposits amounting to USD 200,000 and was to transfer the apartments upon completion, yet it now alleges that the sale agreements merely secured an indebtedness allegedly owed by one Mohamed Maalim Hassan, and has placed them in the market. 12. He also submits that should the Defendant dispose of the suit properties, such transfer would fundamentally alter the subject matter of the dispute and may render any judgment in his favour incapable of enforcement. Further, that his case concerns enforcement of contractual rights over unique property thus he will suer damages incapable of remedy. It is also the Plainti’s submission that the balance of convenience favours maintaining the status quo as the prejudice to him is greater than any inconvenience that may be occasioned to the Defendant. 13. To buttress his averments, the Plainti relied on the following decisions: Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, and Chebii Kipkoech v Barnabas Tuitoek Bargoria & Another [2019] eKLR. 14. On its part, the Defendant insists that the Plainti’s adavit in support of the instant Notice of Motion is defective and ought to be expunged from the record for failure to meet the requisite legal standards. It also faults the Plainti for merging his prayer for injunctions pending hearing and determination of the application and suit in a single prayer, contending that he fails to clearly dene the duration and nature of the relief sought, rendering the prayer incapable of proper determination. To this end, it relied on the case of Asire & 6 others v Kalul & 4 others (Civil Case 130 of 2025) [2026] KEHC 1487 (KLR) (Civ) (12 February 2026) (Ruling). 15. It submits that the Plainti has not established sucient cause for the grant of temporary injunctions, insisting that the impugned agreements for sale were not executed in the ordinary sense of sale agreements but rather, they were executed as security for the indebtedness of a third party, one https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5577/eng@2026-09-23 3

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Mohamed Maalim Hassan, subject to express conditions, which were never fullled. Further, that there is no evidence of payment of the alleged deposit thus there is no demonstration of any legal or equitable right capable of protection, adding that the Plainti is neither in possession nor occupation of the suit properties and has never been. 16. It submits that in contrast, it is the registered proprietor of the suit properties and is entitled to all the rights and privileges attendant to such ownership thus granting the orders sought would unjustiably restrain it from dealing with its own property, thereby occasioning substantial prejudice but if the Plainti succeeds at trial, his claim is monetary and is readily compensable by an award of damages thus the balance of convenience lies in maintaining enjoyment of its proprietary rights pending the determination of the suit. Analysis and Determination 17. I have considered the instant Notice of Motion application including the respective adavits and rivalling submissions and the issues for determination are whether the Plainti's supporting adavit is defective and if he has established the threshold for grant of an interlocutory injunction restraining the Defendant from interfering with the suit properties pending the outcome of this suit. 18. The Plainti’s case is that vide two separate sale agreements dated 8th November 2024, the Defendant agreed to sell to him two o-plan properties, described as four (4) Bedroom Duplex Apartments Plus DSQ Type B6, to be erected on the parcels of land identied at paragraph two (2) herein. He contends that the agreed purchase price for the rst property was USD 125,000, out of which USD 100,000 was payable as deposit and USD 25,000 upon completion while in respect of the second property, the purchase price was USD 110,000, with USD 100,000 payable as deposit and the balance of USD 10,000 upon completion. 19. It is his case that he paid USD 100,000 in deposit for each property in cash and that the Defendant acknowledged the payments. He avers that the two properties have been completed and while he remains ready and willing to pay the outstanding balance, the Defendant has refused to accept it and has placed the properties on the market. 20. While the Defendant admits to entering into the impugned agreements for sale, he claims that they were security arrangements intended to secure a debt owed to the Plainti, by Mohamed Maalim Hassan and subject to the said Mohamed Maalim Hassan paying for the two properties, but he never did so. It also contends that since it is the registered proprietor of the two suit properties, it ought not be restrained from dealing with them as it wishes and considering that the Plainti has never been in their possession or occupation. 21. On the rst issue, the Defendant contended that the Plainti's supporting adavit was improperly executed because he signed it using initials, which dier from the signature appearing on the impugned sale agreements. On this issue, the Court will determine whether the said adavit is defective in form to warrant being expunged. Order 19 Rule 7 of the Civil Procedure Rules states that: “ The court may receive any adavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality.” 22. On perusal of the said supporting adavit and from a reading of the aforementioned legal provisions and applying it to the circumstances at hand, I do not nd that the said adavit is improperly executed as claimed by the Defendant and will decline to expunge it from the record. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5577/eng@2026-09-23 4

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23. As to whether the Plainti is entitled to the orders of interlocutory injunction as sought, I will rely on the principles on injunction as set out in the case of Giella v Cassman Brown (1973) EA 358 as well as the denition of a prima facie case as stated in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, to determine whether the Plainti has established a prima facie case. 24. Looking at the documents presented by the Plainti, I note there was indeed a duly executed Sale Agreements in respect of the suit premises. The Defendant has not denied receipt of most of the purchase price. Further, the issues the Defendant raises in its replying adavit, were never included in the impugned Sale Agreement. It seems to me that the Defendant seeks to attempt to purport to rewrite the terms of the contract between them and this is contrary to the principles as set out in the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another (Civil Appeal 950/ 1999) [2001] KECA 362 (KLR) (8 June 2001) (Judgment). 25. Since the Plainti adhered to the terms of the sale agreements and paid most of the purchase price, I nd that the Defendant’s refusal to receive the remaining balance as per the said agreements and granting the Plainti access to the said premises is contrary to the terms they had agreed upon. 26. In the foregoing, I nd that the Plainti has indeed established a prima facie case to warrant the orders of interlocutory injunction restraining the Defendant from interfering with the suit properties pending determination of the suit. I further nd that the Plainti will suer irreparable harm which cannot be compensated by way of damages if the Defendant proceeds to sale the suit properties, which the Plainti had paid most of the purchase price for. Further, that the balance of convenience tilts in favour of preserving the suit properties so that they are not disposed of. 27. In the foregoing, I nd the instant Notice of Motion application merited and will allow it in the following terms: i. Pending hearing and determination of this suit, an order of temporary injunction be and is hereby issued restraining the Defendant/ Respondent, its agents, servants, employees, assigns or otherwise howsoever from leasing, oering for sale, disposing of, selling, charging or otherwise in any way dealing with all those properties known as 4 Bedroom Duplex Apartment plus DSQ Type B6 on 14th and 15th oor and 4 bedroom Duplex Apartment plus DSQ Type B6 on 14th and 15th oor, both erected on Title Numbers Nairobi Block 104/525, Nairobi Block 104/526, Nairobi Block 104/527, Nairobi Block 104/528, Nairobi Block 104/529, Nairobi Block 104/530, Nairobi Block 104/351, Nairobi Block 104/532, Nairobi Block 104/533, Nairobi Block 104/534, and Nairobi Block 104/535 in Nairobi County. ii. Costs will be in the cause. DATED SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Mutunga for Defendant Otieno for Plainti Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5577/eng@2026-09-23 5

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