Elisatech Diagnostics E.a Limited & 1 other v Adiungo Kenya Limited & 1 other

3. The grounds in support of the application as set out on the face thereof and expounded in the affidavit of Richard Obwogi sworn on 27th May 2025 are that: a. the applicants acknowledge the 1st respondent's right to exercise its power of sale over the applicants’ various properties, which constitute the bulk of the securities issued to the 1st respondent. That the applicants have since discovered that the 1st respondent's power of sale is not being exercised in accordance with the relevant land regime. b. Further, from their own knowledge the applicants are aware that the respondents intend to dispose of L.R. No. Kwale Galu Kinondo/1005 for a measly sum of KShs. 10,000,000/= which price according to the applicant is far below the forced market value of the suit property Furthermore, the respondents failed to furnish the applicants with the information of whether any valuation of the property actually conducted by themselves, and if so, by which valuers, as well as whether the aforementioned valuers are actually registered with their relevant regulatory board. c. Further that the respondent's agents issued an advertisement on 14th May 2024, indicating that the suit property will be auctioned on 28th May 2024 which advertisement fails to comply with Rule 16 of the Auctioneers’ Rules 1997 since it does not specify the terms of sale, where the same may be acquired, or the time of viewing the property. Therefore, it is a matter of concern to the applicants that the respondents are determined to violate the duty of care owed to the applicants by failing to secure the best market/forced price of the property reasonably achievable at the time of sale. d. Consequently should the auction of the property, which is scheduled to take place on the 28th May 2024, proceed as planned, the applicants will suffer irreparable loss that cannot be compensated through an award of damages since the property is on the verge of being sold at an undervalue, and that the applicants will also be forced to shoulder the mistakes of the respondents by continuing to repay the part of the loan that could have comfortably been covered through the sale of the property at an agreeable market/forced value. e. All the same, the applicants propose to repay the loan facility at a rate of USD 4,000/= per month for six months after which the monthly remittance can escalate at an affordable rate. f. The respondents shall suffer no prejudice if this subsequent application is allowed 1. The applicants have annexed a copy of an advertisement for sale of the said property by Freeman Auctioneers scheduled for 28th May 2024. 2. The application was certified as urgent with directions that it be served by close of business on 29th May 2024 and that the matter be mentioned for directions before the duty judge Kwale High Court on 30th May 2024. 3. The application was duly served as the 1st and 2nd defendants/respondents filed a replying affidavit sworn on 4th June 2024 by Steven Lee a director of both companies. 4. He deposed that It is not true that the power of sale is not being exercised in accordance with the relevant laws as alleged by the plaintiffs and in fact, the same issue was raised in the application dated 23rd January 2023 and was determined by this court differently constituted in the ruling dated 9th May 2024 that all the notices were issued in accordance with the law and there was no evidence to show that the statutory power of sale was not in accordance with the law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4563/eng@2026-02-16 2

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5. Further that the plaintiffs had not attached any evidence to support their allegations that the property was being sold at a mere KShs 10,000,000/=. To the contrary, it is the defendants’ position that a valuation of the property was conducted by Avid Property Valuers Limited and a report dated 29th February 2024 was issued which indicates the market value of the property to be KShs 19,000,000/= and the forced sale value to be KShs 14,250,000/=. The 1st and 2nd defendants therefore deny that they intend to sell the property below the forced sale value. A copy of the said valuation report dated 29th February 2024 is annexed to the replying affidavit. 6. Further that the advertisement issued by the 3rd defendant is in compliance with Rule 16 of the Auctioneers’ Rules as the same specifies the date, time and place of the proposed sale, the conditions of sale or where they may be obtained and the time for viewing the property to be sold. 7. The 1st and 2nd defendants depose that the applicant’s having conceded that the amount claimed is due or the same having been proved to be due, a chargee cannot be restrained by an injunction. 8. Further, that the applicants have failed to demonstrate what irreparable loss they will suffer if the injunction is not granted. Rather the 1st and 2nd defendants continue to suffer irreparably due to the failure by the applicants to clear the loan which is now in arrears and as at 31st January 2024 stood at USD 266,032/= inclusive of penalties. The respondents have annexed to the replying affidavit copies of Statement of Account showing the outstanding amount together with interests accrued. 9. The respondents depose further that for the reason that the applicants have failed to repay the loan, the orders sought in the application ought not to be granted since the charged property was offered as security and the 1st and 2nd defendants should be allowed to exercise their remedies if they so desire as provided for under sections 90 to 96 of the Land Act (cap. 280) Laws of Kenya and an order curtailing such rights would be contrary to well laid down legal principles. 13. In response to the request to liquidate the outstanding amount in the installments suggested by the applicants, the 1st and 2nd defendants depose that the plaintiffs have not shown any good will to repay the loan. The 1st plaintiff’s director has been making promises of settling but has not honoured any of their promises. Therefore, it is their position that the instant application is yet another delay tactic being employed by the plaintiffs in spite of their admission that they are in default. According to the respondents, if the recovery process is restrained, there is a risk and high likelihood that the outstanding amount will grow exponentially due to interests, and that the debt may outstrip the value of the suit property. 14. It is the 1st and 2nd respondents’ position that the plaintiffs have not established any grounds under Order 45 of the Civil Procedure Rules 2010 to warrant a review of the ruling delivered on 9th May 2024 nor have they established a prima facie case with a probability of success to warrant issuance of an injunction. 15. This case was being handled as a circuit matter by judges from Mombasa High Court. The last handwritten proceedings in the file were dated 6th June 2024 when the matter was fixed to come up before a different circuit judge on 12th June 2024. It appears that nothing ever happened until the file https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4563/eng@2026-02-16 3

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was handed back to this station on 10th July 2025, this court having been fully constituted as from 1st January 2025. 16. After several mentions without any of the parties attending, counsel for the respondents appeared for mention on 22nd October 2025. Learned counsel informed the court that the matter had been pending for long and the plaintiffs/applicants had not prosecuted it. It was therefore their view that the respondents would move the court to have the application and the entire suit for dismissal. He also informed the court that the respondents had filed submissions to the application. However, I have checked both the CTS and the physical filed and I do not see any submissions to the present application filed by the 1st and 2nd respondents or any party for that matter. 17. However, going through the documents filed in the CTS, I note that there was a correspondence dated 15th October 2024 from JMK Partners Advocates for the 1st and 2nd respondents/defendants to the Deputy Registrar of this court requesting for a date for mention for pre-trial. It has not been clear whether the matter was proceeded with and a ruling delivered as there is none in the CTS in relation to the current application. Such a request would indicate that the interlocutory applications had been dispensed with and the matter was moving to case management for trial of the main suit. There is no further correspondence or proceedings in the matter until 10th July when this court became seized thereof. 18. The file was placed before me on 10th July 2025. This court fixed the matter for mention severally. 19. On 22nd October 2025, only the counsel for the Ds attended court and informed the court that the plaintiff had not prosecuted its said application. It is apparent that the applicant lost interest in the application. 20. It appears that after filing the application dated 27th May 2024 there has been no further action taken by the applicant to prosecute the application. I note that upon certifying the application as urgent, the court did not issue any interim orders of injunction as had been applied for. It would appear that the applicants became demotivated and abandoned the application as they never followed it up with filing submissions after being served with the replying affidavit by the 1st and 2nd respondents. 21. The application is brought under Sections 1, 1A, 3,3A and 18 of the Civil Procedure Act (Cap 21) Laws of Kenya, Order 40, Order 51 rule 1 of the Civil Procedure Rules and any other relevant provisions of the law. 22. I have considered the notice of motion application, the grounds in support thereof, the supporting affidavit and the replying affidavit thereto. 23. As stated above, this court delivered a ruling dismissing the applicant’s application for temporary injunction pending hearing and determination of the suit herein. The present application is not for review of that ruling under section 80 CPA and Order 45 but is a fresh application for injunction. The issue for determination is whether the application meets the threshold for grant of an order of injunction as provided for under Order 40 of the CPR and expounded in the case of Giella v Cassman Brown & Co Ltd (1973) EA 358 at pp 360 as follows: “ First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience. (EA Industries v Trufoods, [1972] EA 420.)” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4563/eng@2026-02-16 4

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24. The present application is based on the same suit filed herein alongside the earlier application. In the ruling of this court dated 9th May 2024, this court found that the applicants/plaintiffs had not satisfied any of the conditions for grant of an interlocutory injunction set out above in the case of Giella v Cassman Brown. This court found that the applicants had not established a prima facie case with a probability of success. That is the same suit, the basis of the present application. There has been no amendment to that suit. On what basis would this court find that now, it has a prima facie case with a probability of success? (see generally the reasoning of the Court of Appeal in Bao Investments & Office Management Services Ltd v Housing Finance Co of Kenya Ltd [2006] KECA 168 (KLR). 25. I am persuaded to follow the High Court decision in the case of Gerishom L. Majanja v Wycliffe Oparanya & another [2015] KEHC 2606 (KLR) where upon considering a similar situation, the Court held thus: “ What is before court now is a second application for injunction. It is important to state here that the applicant has not yet amended his petition and the draft amended petition (which is yet to be filed) cannot be an anchor for grant of an injunction. It is not yet a pleading but an indented pleading and therefore cannot be the basis of an application for injunction, as it is in this case. The applicant has sought leave to amend his petition, he at the same time cannot purport to seek an order of injunction. It is not clear at this stage on which petition he relies. If his application is based on the original petition, the court (Mrima, J.) made a determination of that application and it cannot be a basis for seeking conservatory orders again. This is because, in a comprehensive ruling, the learned Judge delt with the issue of conservatory orders and found the application unmeritorious. In attempting to file another application seeking more or less similar orders, the applicant is only trying his luck but obviously such an application is not well founded and may very well be res-judicata.” 26. There must at least be some ground for the plaintiff to come forward and demonstrate that the suit has since changed its character and that can only be through an amendment. Otherwise how would the court and the other parties know of the changed character of the suit. In any case, the plaintiff has not anywhere indicated that there is any change in the character of the suit. 27. The Court of Appeal in the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) restating the principles for grant of an injunction as stated above went further to hold that these are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent and further that the three conditions for granting an injunction are considered sequentially, so that the second and third conditions cannot be considered once the first condition is not established. 28. In the present application, the applicant has not only failed to prosecute its application for grant of an interlocutory injunction but considering the same as laid out herein, I find that it does not meet the threshold as required under the law. 29. Consequently, I find that the application herein has no merit and the same is dismissed with costs to the 1st and 2nd respondents. 30. Orders accordingly. 31. Mention on 15th April 2026 for pre-trial directions in the main suit. DELIVERED, DATED AND SIGNED AT KWALE ON THE VIRTUAL PLATFORM, MICROSOFT TEAMS THIS 16TH DAY OF FEBRUARY 2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4563/eng@2026-02-16 5

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ANDAYI W. F. JUDGE In the presence of: No appearance for applicant. No appearance for the respondent. Ummu: Court Assistant. SIGNED BY/FOR: HON. JUSTICE ANDAYI W.F. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4563/eng@2026-02-16 6

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