Singh v Kingorani Investment Ltd

iv. That in the rst instance, ex-parte and thereafter pending the inter-parte hearing and determination of this Application and then the suit, this Honourable Court issues an Order for temporary injunction restraining the Defendant, its directors, agents, employees, servants and or whomsoever from trespassing, interfering, dealing, wasting and or, damaging or dealing in any manner whatsoever with Land Reference Number 214/293 Orchard Close, O Muthaiga Road, Muthaiga, Nairobi. v. That in the rst instance, ex-parte and thereafter pending the inter-parte hearing and determination of this Application and then the suit, this Honourable Court Orders the Defendant to give the Plainti vacant possession of Land Reference Number 214/293 Orchard Close, O Muthaiga Road, Muthaiga, Nairobi on or before 20th March 2025. vi. That pending the hearing and determination of this Application and then the suit, this Honourable Court issues an Order for temporary injunction restraining the Defendant, its directors, agents, employees, servants and or whomsoever from trespassing, interfering, dealing, wasting and or, damaging or dealing in any manner whatsoever with Land Reference Number 214/293 Orchard Close, O Muthaiga Road, Muthaiga, Nairobi. vii. That upon the hearing and determination of this Application and thereafter suit, this Honourable Court to Order the Defendant to immediately give the Plainti vacant possession of Land Reference Number 214/293 Orchard Close, O Muthaiga Road, Muthaiga, Nairobi on or before 20th March 2025. viii. That this Honourable Court be pleased to issue any other order or relief it may deem appropriate, just or equitable. ix. That the costs of this application be in the cause. 2. The Motion is premised on the grounds set out on its face and is supported by the adavit of James Gitau Singh, the Plainti/Applicant herein. He deponed that the Defendant/Respondent had charged its property, L.R. No. 214/293, Orchard Close, o Muthaiga Road, in favour of Middle East Bank Kenya Limited as security for nancial facilities advanced to Transeet Limited. Following Transeet Limited’s default in servicing the loan facility secured by the suit property, Middle East Bank Kenya Limited instructed Garam Investments Auctioneers to exercise its statutory power of sale 3. It was deposed by the Plainti that the property was subsequently advertised in the Daily Nation on 18th December 2023, and 8th January 2024, for sale by public auction on 16th January 2024, at the auctioneer’s oces and that he attended the auction alongside several other bidders and was ultimately declared the highest bidder at Kshs 152,200,000. 4. Immediately after the auction, he explained, he paid the requisite 10% deposit of Kshs. 15,200,000; that non conrmation of receipt of the funds, he executed a memorandum of sale and was issued with a certicate of sale dated 16th January 2024 and that the auctioneer also furnished him with the requisite documents to facilitate the transfer of the property being an Auctioneers License Class B, Certicate of Registration (Change of Particulars) and a KRA Pin Certicate. 5. According to Mr. Gitau, he is aware that before exercising its statutory power of sale, the Bank had complied with Sections 96(2) and 97 of the Land Act by obtaining a valuation of the property and issuing the requisite statutory notices and that the Bank, through the auctioneer, had also served the chargor with a notication of sale and notice pursuant to the Auctioneers Rules. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5629/eng@2026-09-24 2

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6. He explained that Transeet Limited instituted ELC No. E018 of 2024 seeking to stop the completion of the sale. In so doing, Transeet and other Defendant’s in that matter acknowledged that the property had been charged to secure facilities advanced to Transeet Limited; that the borrower had defaulted and that the auction held on 16th January 2024 resulted in his being declared the highest bidder. 7. He stated that an ex parte order issued in ELC No. E018 of 2024 on 24th January 2024, temporarily restrained him from paying the balance of the purchase price. Following the dismissal of the suit and discharge of the impediment to completion, he paid the outstanding balance of Kshs. 136,800,000 to the Bank on 27th November 2024 and that the Bank thereafter released the transfer documents to his advocates, and he paid the assessed stamp duty of Kshs. 7,955,030 and the property was subsequently transferred and registered in his name on 5th December 2024. 8. Similarly, he noted, Transeet Limited had instituted HCCOMM No. E034 of 2024, Transeet Limited vs Middle East Bank Kenya Limited & 3 Others, seeking further injunctive relief in relation to the property. The court however declined to grant the orders sought. He contended that, in those proceedings, the Respondent herein acknowledged the sale of the property and requested that the proceeds of sale be credited to its loan account to avert the sale of its other properties. The Respondent, he urged, is therefore estopped from disputing the sale and subsequent transfer of the suit property to him. 9. According to Mr. Gitau, on the 6th and 9th December 2024, his advocates notied the Respondent, its directors and estate agents that he was the registered proprietor and demanded that the property be handed over to him; that the Respondent neither responded nor yielded possession but instead it continued to advertise the houses erected on the property for rent at Kshs. 430,000 per month per unit and that through its estate agent, attempted to lease them to third parties despite being aware of his ownership and the subsisting orders for the maintenance of the status quo. 10. The Plainti deposed that on 9th December 2024, he attempted to access the property for valuation and insurance purposes but was denied entry by security guards employed by the Respondent and that he subsequently served the Respondent with a three-month notice to vacate dated 19th December 2024, which was due to expire on 20th March 2025. 11. He contended that the Respondent’s continued occupation and control of the property, without his consent, exposes it to waste, damage and alienation and prevents him from insuring it, earning rental income or negotiating with prospective purchasers. He is also apprehensive that the Respondent might remove ttings from the property, thereby diminishing its value, or lease the premises to unsuspecting third parties and unlawfully collect rent. 12. To preserve the property pending determination of the application and the suit, he proposed that Pam Golding Properties Kenya, or another reputable estate agent appointed by the court, be authorized to manage and maintain the property, provide security, lease the residential units and deposit the rental income into an interest-bearing account. 13. He maintained that the prejudice he stands to suer if the orders are withheld outweighed any prejudice to the Respondent, which, in his view, lacks the nancial capacity to compensate him for the resulting loss. He nevertheless gave an undertaking as to damages and urged the court to allow the application in the interests of justice. 14. The Defendant/Respondent led grounds of opposition dated 16th February 2025, premised on the grounds That: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5629/eng@2026-09-24 3

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i. That the Plaint and the Application before this court is an abuse of the court process and the Plainti is engaging in forum shopping by not disclosing to the court the full extent of the proceedings that have been before Justice Peter Mulwa in Milimani High Court Commercial and Tax Division HCCOMM Case NO. E034 OF 2024, Transeet Limited V. Middle East Bank Kenya Limited and others in which the same issues raised in the present case are directly and substantially in issue. ii. Further that the Plainti has been enjoined through an Amended Plaint dated 14th October 2024, and Justice Mulwa on 10th February 2025 issued status quo orders which were conrmed on 12th February 2025 in the presence of the Plainti who by his own admission in this suit is indeed a party in the said suit. iii. THAT the said suit is with respect to the auction of 16th January 2024, with respect to the present subject property being Land Reference Number 214/293, and Land Reference Number 214/260 and Land Reference Number 214/324 being securities emanating from the Legal Charge Document dated 23rd June 2021, between Middle East Bank Limited the Chargee, Transeet Limited the Borrower and the Defendant as the Chargor. iv. The suit is incurably defective as it fails to fully disclose the genesis of the disputed ownership via auction being the suit known as ELCLC NO. E018 OF 2024 Transeet Limited, Kingorani Investments Limited Versus Middle East Bank Kenya Limited, Garam Investments, Akber Abdullah Kassam Esmail, The Chief Land Registrar And James Gitau Singh (Interested Party) wherein Justice Mogeni by a ruling of 8th October 2024 held the Environment and Land Court lacked jurisdiction to hear the dispute between the parties over the charged properties one of them being Land Reference Number 214/293, Orchard Close, O Muthaiga Road, Muthaiga, Nairobi County which is the subject property in this suit. v. THAT Justice Mogeni in her ruling recognized the primary issue as the legal charge and subsequent notice of sale which was being challenged and expressly stated that this could not be separated from the Interested Party’s being the Defendant herein claim of purchase through a valid auction. She held all those allegations could be ventilated in the High Court. vi. THAT the Plainti lacks the capacity to institute this suit as it is res judicata by dint of the Ruling delivered on 8th October 2024, by Justice Mogeni and the declaration that the Environment and Land Court lacked jurisdiction to hear the matter emanating from the securities between the parties, statutory sale and the Plainti’s claim of purchase. That she ruled that the said issues could only be determined by the High Court before she downed her tools. vii. THAT the Plainti’s remedy thereafter was to appeal or to have a review of the court’s ruling in the aforementioned matter on the matter of jurisdiction of the Environment and Land Court; this suit in its entirety therefore oends the principles of res judicata and contravenes Section 7 of the Civil Procedure Act. viii. Notwithstanding the aforesaid, it is an uncontroverted fact that this matter is sub judice in light of both parties’ admission that there exists a suit in the High Court Commercial and Tax Division being High Court of Kenya Milimani High Court Commercial and Tax Division HCCOMM Case No. E034 of 2024, Transeet Limited V. Middle East Bank Kenya Limited and others. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5629/eng@2026-09-24 4

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ix. THAT the Plainti’s entire suit seeks to unlawfully defeat and deprive the Defendant of its Constitutional property rights as protected under Articles 40 and as secured by Article 60 (1) (b) of the Constitution of Kenya a property it has enjoyed and had peaceful possession of and continues being in possession in accordance to the status quo orders issued by Justice Mulwa. x. Without prejudice to the aforesaid that the suit in its entirety is frivolous, vexatious and an abuse of the court process since it fails to disclose a reasonable cause of action against the Defendant in light of the mandatory provisions of Section 152E of the Land Act which also requires the issuance of the prescribed 3 months’ notice to be issued to a party prior to any eviction or any action to evict. 15. The Respondent similarly led a replying adavit dated 19th February 2025, sworn by its director, James Abiam Mugoya Isabirye. At the onset, he asserted that this court lacks jurisdiction to determine the matter it being barred by the doctrines of res judicata and sub judice and as further referenced in the notice of preliminary objection. 16. Without prejudice to the foregoing, he explained, several core and substantial issues concerning the Bank’s conduct in the exercise of its statutory power of sale and the auction of the suit property are live before the commercial court. These include allegations that the Bank failed to serve the Respondent, the Borrower, the lessees of L.R. No. 214/293 and himself, the guarantor of the loan, with the requisite notices, including the statutory notice of at least 40 days, before exercising its power of sale. 17. Further, he explained, questions abound regarding whether the Bank had discharged its duty of care to the Respondent and the guarantor by conducting the sale in accordance with the law, obtaining the best market price reasonably obtainable and ensuring that the forced-sale value is not more than 25% below the market value of comparable properties. 18. The Bank is also accused by Respondent of failing to advertise the auction publicly in accordance with the law, bring it to the attention of persons likely to be interested in bidding for the property, despite its prime location in one of Nairobi’s most expensive real-estate areas and set a reserve price. 19. The Respondent also cited an alleged conict of interest involving an employee of the Bank, and the instructions issued to Garam Investments concerning the auction. In particular, he reiterated that an employee, one Bruce Riungu had abused his position by depositing bankers’ cheques amounting to Kshs. 5,000,000 into the Bank’s suspense account between 2:53 a.m. and 2:57 a.m. on 16th January 2024, several hours before the auction allegedly scheduled for 11:00 a.m. He further questioned the integrity of the auction because Bank employees, including Bruce Riungu, were among those in attendance. 20. The Respondent’s director additionally referenced, as one of the live issues, the contention that the assignment of bidder numbers and the bidding process lacked transparency and the assertion that funds were allegedly paid for properties that were not the subject of the auction of 16th January 2024, but were subsequently consolidated to constitute the purported 10% deposit. 21. Also referenced were the questions of whether James Gitau Singh, the purported purchaser, had paid the requisite 10% deposit of Kshs. 15,200,000 at the fall of the hammer and whether that sum had been deposited into an account held by Garam Investments, the auctioneer. He maintained that no such payment had been made, thereby rendering the auction incomplete and void. Also in issue was whether the Bank had misrepresented that the purchase price had been paid despite allegedly knowing otherwise. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5629/eng@2026-09-24 5

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22. The Respondent’s director acknowledged that registration as proprietor under the Land Registration Act, 2012, is prima facie evidence of absolute and indefeasible ownership, subject to the encumbrances, easements, restrictions and conditions endorsed on the title. He nevertheless asserted that, under Section 26(1) of the Act, such title is not immune from challenge where it has been obtained through fraud or misrepresentation, or acquired illegally, unprocedurally or through a corrupt scheme. 23. He therefore maintained that the Applicant’s claim of ownership remains open to legal scrutiny and challenge in view of the circumstances surrounding its acquisition and urged the court to refrain from making any determination that would prejudice or pre-empt the Commercial Court’s ndings on the validity of the auction and sale. 24. The Applicant led a supplementary adavit sworn on 22nd August 2025. He explained that interim orders maintaining the status quo had been issued in HCCOM No. E034 of 2024, Transeet Limited v Middle East Bank Kenya Limited, pending the determination of an application for an injunction concerning L.R. No. 214/293. 25. Upon learning of those orders, his advocates sought an adjournment of the present application pending the High Court’s determination, and the matter was consequently adjourned on 20th February and 10th June 2025; that by a ruling delivered on 31st July 2025, Mulwa J. discharged the status quo orders and dismissed the Respondent’s application for an injunction, thereby removing any impediment to the enforcement of his rights over the suit property. 26. According to Mr. Gitau, the High Court found that he was an innocent purchaser for value at a public auction, conrmed that the suit property had been transferred to and registered in his name, and held that the Respondent’s remedy, if any, lay in damages against the auctioneer and/or chargee. 27. He also stated that the Respondent’s application to be joined in the commercial suit as the 2nd Plainti was declined and that no appeal or application for review had been led against the ruling of 31st July 2025; that although the High Court directed the Plainti in that suit to le an amended Plaint within seven days, the direction had not been complied with, nor had summons to enter appearance been extracted and that an application seeking to strike out the suit for failure to extract summons was pending. 28. He consequently maintained that there is no longer any legal or equitable impediment to the grant of an eviction order and urged the court, in the interests of justice, to grant the orders sought. Submissions 29. The Applicant led submissions dated 29th September 2025. Counsel submitted that, on 19th December 2024, the Applicant issued the Respondent with the requisite three-month notice to vacate the suit property; that the notice, which expired on 20th March 2025, was served upon both the Respondent and the Starehe Sub-County Police Commander and that a registered proprietor who has complied with the statutory requirements for eviction is entitled to vacant possession. 30. Reliance was placed on Muthithi Investments Limited vs Andrew S. Kyendo & 22 Others [2021] KEELC 4534 (KLR) and Michael Otieno Wagunde vs Morris Olwal [2017] KEELC 1235 (KLR), in which the occupants were ordered to deliver vacant possession to the registered proprietors. Also cited was Pwani Oil Products Limited vs Aboo & 3 Others [2024] KEELC 3717 (KLR). 31. On whether the Applicant had met the threshold for the grant of an interlocutory injunction, Counsel submitted that, in the ruling delivered on 31st July 2025, Mulwa J. found that the Applicant was an innocent purchaser for value at a public auction and that the High Court also conrmed that the suit https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5629/eng@2026-09-24 6

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property had been transferred to and registered in the Applicant’s name and held that the Respondent’s remedy, if any, lies in damages against the auctioneer and/or the chargee. 32. It was also submitted that Section 99 of the Land Act protects the interest of a bona de purchaser, even where an irregularity may have occurred before the purchaser acquired the property. Counsel relied on Lawrence Mukiri vs Attorney General & 4 Others [2013] KEHC 3676 (KLR), in which the court armed the protection aorded to a bona de purchaser of a legal estate without notice. Reference was also made to Sehmi & Another vs Tarabana Company Limited & 5 Others [2025] KESC 21 (KLR), where the Supreme Court armed that a title deed constitutes prima facie evidence of ownership. 33. On irreparable harm, counsel submitted that the Applicant and his agents had been denied access to the property, thereby preventing him from generating rental or lease income, obtaining insurance to preserve its value, and negotiating or concluding sale agreements with prospective purchasers. Counsel contended that the Applicant had consequently been unjustly deprived of the use and enjoyment of his constitutionally protected property rights. 34. The Respondent led written submissions dated 12th November, 2025 on 29th July, 2026. Counsel submitted that the application seeks, in substance, mandatory injunctive relief despite being framed as an application for a temporary injunction. Reliance was placed on Kenya Breweries Limited & Another vs Washington O. Okeyo [2002] 1 EA 109 and Locabail International Finance Ltd vs Agroexport & Others [1986] 1 All ER 901 for the proposition that interlocutory mandatory injunctions are granted only in exceptional circumstances, in clear cases, or where the act complained of is simple and easily remediable. 35. Relying on Belle Maison Limited vs Yaya Towers Limited, The Ripples Limited vs Kamau Mucuha, Lucy Wangui Gachara Minudi Okemba Lore [2015] eKLR, James Nyakundi Ndege vs Barclays Bank of Kenya [2010] eKLR and TNT Express Worldwide (Kenya) Limited v Timothy Graeme Steel [2022] KECA 881 (KLR), it was urged that mandatory orders should not be granted where there are serious disputes of fact requiring oral evidence and cross-examination, or where the orders sought would eectively determine the suit at an interlocutory stage. 36. Counsel argued that the Applicant’s prayers for vacant possession amount to nal relief before trial, while the proposed appointment of Palm Golding Properties Kenya, or another estate agent, to manage the property, collect rent and provide security will eectively establish a receivership without complying with the requirements of Order 41 of the Civil Procedure Rules. 37. Counsel also urged the court to undertake a site visit under Order 18 Rule 11 of the Civil Procedure Rules to ascertain the actual occupation and condition of the suit property before considering such orders. In support counsel cited Chira & 2 Others vs Kenya Power & Lighting Company Limited [2022] KEELC 2519 (KLR). 38. Counsel further submitted that the Applicant had failed to satisfy the requirements for the grant of a temporary injunction under Giella vs Cassman Brown & Co. Ltd [1973] EA 358 as explained in Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR. 39. It was contended that the Applicant had not established a prima facie case because, although he relied on a certicate of title and Sections 24, 25 and 26 of the Land Registration Act, registration alone does not immunize the title from challenge where its root is disputed. Reliance was placed on Mrao Limited vs First American Bank of Kenya Limited & 2 Others [2003] KLR 125 and Munya Maina vs Hiram Gathiha Maina [2013] eKLR for the proposition that where the root of title is challenged, a proprietor must go beyond production of the title and demonstrate the legality of its acquisition. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5629/eng@2026-09-24 7

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40. Counsel submitted that the Respondent had raised substantial allegations regarding the validity of the statutory sale, including the charge, statutory notices, auction, purchase price, completion and transfer, all of which required full ventilation at trial. It was argued that Section 99 of the Land Act does not eliminate the need for that factual inquiry. 41. On irreparable harm, counsel submitted that the alleged injury was primarily nancial, comprising alleged loss of rental income, inability to deal with the property, insurance costs and diminution in value, all of which were capable of being compensated by an award of damages. It was further argued that the Applicant had produced no evidence of existing tenants, current rental income or any imminent sale, transfer, demolition or other act threatening the property. Counsel also contended that there was no evidence that the Respondent would be unable to satisfy any future decree. 42. It was further argued that Section 152E of the Land Act did not entitle the Applicant to interlocutory eviction, particularly because the Respondent was not a stranger to the property but its former registered proprietor, who was challenging the legality of the statutory sale, transfer and resulting title. Analysis and determination 43. Having considered the pleadings and submissions, the issues that arises for determination are: i. Whether the present Motion is competent? ii. Whether the Plainti/Applicant has satised the threshold for the grant of the interlocutory injunctive reliefs sought? 44. Vide its grounds of opposition and replying adavit, the Respondent challenges the competence of the Motion and the entire suit, contending that the same constitute forum shopping and an abuse of the court process. In particular, it argued that this court lacks jurisdiction because the dispute arose from the realization of a charge through the exercise of the statutory power of sale. 45. The Respondent further maintained that the suit is res judicata in light of the ruling delivered in ELC No. E018 of 2024, and that in any event, sub judice owing to the pendency of HCCOMM No. E034 of 2024. Further that the same contravenes the provisions of Section 152E of the Land Act and a breach Article 40 of the Constitution. 46. Having considered the record, the court notes that these objections were raised and conclusively determined in the court’s ruling delivered on 20th July 2026, on the Respondent’s preliminary objection dated 16th February 2025. In that ruling, the court found that the predominant issues in the present suit concerns the use, occupation and possession of the suit property and the enforcement of the Applicant’s rights as its registered proprietor, matters falling within the jurisdiction of this court. The court further held that the suit is neither res judicata nor sub judice. 47. As to the alleged contraventions of Section 152E of the Land Act and Article 40 of the Constitution, it was stated that the same were questions of fact requiring examination of the evidence and could not, therefore, be determined as preliminary points of law. I agree. These allegations properly fall for consideration within the broader question of whether the interlocutory reliefs sought are warranted. Ultimately, the objections to the competence of the Motion fail. 48. The next issue to deal with is whether the Plainti/Applicant has satised the threshold for the grant of the interlocutory injunctive reliefs sought. Vide the present Motion, the Applicant seeks the appointment of an estate agent to manage and secure the suit property and collect rent, together with https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5629/eng@2026-09-24 8

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immediate access for valuation and insurance, injunctive relief against interference with the property, and vacant possession. 49. Upon consideration of their substance and practical eect, the reliefs sought are predominantly mandatory. It is common ground that the Respondent remains in possession and control of the suit property. As such, the proposed orders would alter, rather than preserve, the prevailing state of aairs. They are therefore mandatory in nature and must satisfy the higher threshold applicable to interlocutory mandatory injunctions. 50. Accordingly, the Applicant must satisfy the test governing the grant of an interlocutory mandatory injunction, as succinctly stated in Halsbury’s Laws of England, 4th Edition, Volume 24, paragraph 948, as follows: “ A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plainti…a mandatory injunction will be granted on an interlocutory application.” 51. Further guidance is found in Locabail International Finance Ltd. vs Agroexport & Others [1986] 1 All ER 901, where it was held: “ A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plainti. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a dierent and higher standard than was required for a prohibitory injunction.” 52. Closer home, the Court of Appeal in Joseph Kaloki t/a Royal Family Assembly vs Nancy Atieno Ouma [2020] KECA 831 (KLR), rearming its decision in Kenya Breweries Limited & Another v Washington O. Okeyo [2002] eKLR, stated that: “ a mandatory injunction can be granted on an interlocutory application as well as at the hearing but should not normally be granted in the absence of special circumstances but that if a case is clear and which the court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory application.” 53. The court also rearmed its decision in Shari Abdi Hassan vs Nadhif Jama Adan [2006] eKLR, where it had stated that: “ The courts have been reluctant to grant mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in law as stated above that the party against whom the mandatory injunction is sought is on the wrong, the courts have taken action to ensure that justice is meted out without the need to wait for full hearing of the entire case.” 54. The court is guided accordingly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5629/eng@2026-09-24 9

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55. By way of brief background, and as aforesaid, the Applicant seeks orders for the management, preservation and vacant possession of Land Reference Number 214/293, Orchard Close, o Muthaiga Road, Muthaiga, Nairobi. It is his case that the suit property, formerly registered in the Respondent’s name and charged to Middle East Bank Kenya Limited to secure facilities advanced to Transeet Limited, was sold by public auction following default in repayment. 56. He avers that he emerged as the successful bidder at the auction held on 16th January 2024 for Kshs. 152,200,000, paid the full purchase price and stamp duty, and was registered as proprietor on 5th December 2024. Although the Respondent had obtained ex parte orders restraining dealings with the property in ELC Case No. E018 of 2024, that suit was struck out on 8th October 2024, while a subsequent application for injunctive relief in HCCOMM Case No. E034 of 2024 was unsuccessful. 57. The Applicant contends that, despite demands and notice to vacate, the Respondent has continued to occupy and control the property, stationed guards at its entrance, denied him and his insurance agents access, advertised the houses thereon for rent and collected rent from tenants, thereby unlawfully interfering with his proprietary rights and occasioning him loss. 58. The Respondent, on its part, maintains that the Applicant’s title is contested, the validity of the statutory sale and auction remains in dispute, and the issues surrounding the service of statutory notices, payment of the purchase price and subsequent transfer require determination at trial. It further contends that the reliefs sought would eectively dispossess it and determine the suit at an interlocutory stage. 59. It is not disputed that the Respondent was the initial registered proprietor of the suit property and had it charged in favour of Middle East Bank Kenya Limited as security for loan facilities advanced to Transeet Limited. Following Transeet Limited’s default in repayment, the Bank commenced the process of exercising its statutory power of sale. 60. The suit property was sold by public auction on 16th January 2024, at which the Applicant emerged as the highest bidder for Kshs. 152,200,000. According to the Applicant, he paid the requisite deposit, executed the memorandum of sale and was issued with a certicate of sale. Following the striking out of ELC No. E018 of 2024 and the discharge of the orders that had restrained completion of the transaction, he paid the balance of the purchase price together with the requisite stamp duty. The transfer was subsequently registered in his favour on 5th December 2024. 61. It is trite that, by virtue of Sections 24, 25 and 26 of the Land Registration Act, registration vested in the Applicant the rights and privileges appurtenant to the suit property, including the rights to possession, use and quiet enjoyment. The certicate of title is prima facie evidence that he is the absolute and indefeasible proprietor, subject only to the statutory grounds upon which a registered title may be challenged. 62. The Respondent does not dispute that the public auction took place or that the property was subsequently transferred to, and registered in the Applicant’s name. Its case is that the charge, statutory notices, valuation, auction, payment of the purchase price and subsequent transfer were irregular and unlawful. Those allegations are the subject of HCCOMM No. E034 of 2024. 63. Signicantly, however, by the ruling delivered on 31st July 2025, Mulwa J dismissed the application seeking injunctive relief against the sale and discharged the subsisting status quo orders. The High Court found that the Applicant was an innocent purchaser for value at a public auction, acknowledged that the property had been transferred to and registered in his name and held that the Respondent’s remedy, if any, lay in damages against the auctioneer and/or the chargee. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5629/eng@2026-09-24 10

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64. The aforesaid position accords with Section 99 of the Land Act, which protects a purchaser of charged land sold in the exercise of a chargee’s statutory power of sale and provides that a person prejudiced by an improper or irregular exercise of that power has a remedy in damages against the person exercising it. 65. Indeed, as expressed by the Court of Appeal in Sema Health Products Limited vs Housing Finance Corporation & another (Civil Appeal (Application) E492 of 2023) [2024] KECA 245 (KLR) (8 March 2024) (Ruling): “ The suit property was sold by public auction on 24th August 2021. The 2nd respondent was declared the highest bidder at the fall of the hammer. It is not in dispute that what led to the sale of the suit property was the applicant’s default in repayment of the funds that had been advanced to it, together with the accrued interest. 22. Even if the applicant’s intended appeal were to succeed, the law is clear that a mortgagor’s equity of redemption is extinguished at the fall of the hammer, and the only remedy lies in an action for damages. See section 99(4) of the Land Act, 2012.” 66. In the present case, the Respondent’s equity of redemption was extinguished at the fall of the hammer on 16th January 2024. If the Respondent ultimately establishes that the statutory power of sale was exercised irregularly, its remedy lies in damages, a position that the High Court has already pronounced itself upon. In the meantime, the completed auction and subsequent registration of the transfer in the Applicant’s favour cannot be disregarded merely because the Respondent continues to challenge the antecedent transaction. 67. Despite completion of the sale, registration of the Applicant as proprietor and repeated demands for possession, the Respondent remains in occupation and control of the suit property. The Applicant also served the Respondent with a three-month notice to vacate dated 19th December 2024, which expired on 20th March 2025 without compliance. Although the application was led before the expiry of the notice, the statutory period has since expired. 68. In the circumstances, the Applicant has established a clear proprietary claim. He purchased the property at a public auction, paid the full purchase price and stamp duty, and was registered as proprietor. Further, the orders restraining completion of the transaction have since been discharged by the High Court. 69. To the extent that the Respondent’s remedy lies in damages as against the bank, if at all, this court nds that the circumstances herein are suciently exceptional to warrant interlocutory mandatory relief in the nature of vacant possession. 70. As regards the temporary prohibitory injunction, the Applicant’s registration as proprietor, coupled with the Respondent’s continued occupation and dealings with the property, establishes an apparently infringed proprietary right establishing a prima facie case. 71. The Applicant’s exclusion from the property and the attendant risk of waste, damage and unauthorized dealings also disclose harm that may not be adequately remedied by damages alone. The balance of convenience also favours protecting his proprietary rights. 72. Regarding the proposed appointment of Palm Golding Properties Kenya, or another estate agent, the court considers the same unnecessary in the circumstances. Upon obtaining possession, the Applicant, as the registered proprietor, is at liberty to appoint an estate agent of his choice to manage and preserve the property, subject to the ultimate determination of the suit. The prayer for the appointment of an estate agent is therefore declined. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5629/eng@2026-09-24 11

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73. The prayer for immediate and unfettered access is consequential upon the order of vacant possession. Accordingly, the Notice of Motion dated 20th January 2025 succeeds as follows: a. The Respondent shall deliver vacant possession of L.R. No. 214/293, Orchard Close, o Muthaiga Road, Muthaiga, Nairobi, to the Applicant within thirty (30) days from the date of this ruling. b. A temporary injunction does hereby issue restraining the Respondent, its directors, agents, employees and servants from trespassing, leasing, advertising for rent, wasting, damaging, alienating or otherwise dealing with the suit property pending the hearing and determination of this suit. c. The Respondent to pay the costs of the application. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. O. A. ANGOTE JUDGE In the presence of; Mr. Chemoiwa for Plainti Mr. Murima holding brief for Wamithi for Defendant Court Assistant: Tracy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5629/eng@2026-09-24 12

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