I&m Bank Limited v Desire Flora Kenya Limited

1. A declaration that actions of the administrator and the Land Registrar, Kajiado in the transfer of the property Kajiado/Kisaju/107 to Fiore Amore Kenya Limited were illegal, null and void and in contempt of its orders of 12.8.2025. 2. Summoning of the administrator, Madhav Bhandari of Bakertilly Consulting Limited, Monica Bor, Abdi Taquyin Haithar, Timina Lwandala Igonga working for the 4th interested party, and the land registrar, Kajiado to show cause why they in full knowledge willfully disobeyed the orders of 12.8.2025. 3. Committal of the administrator, Madhav Bhandari of Bakertilly Consulting Limited, Monica Bor, Abdi Taquyin Haithar, Timina Lwandala Igonga working for the 4th interested party, the land registrar Kajiado to jail for contempt of the orders of 12.8.2025. 3. The applications are supported by the affidavits sworn by the applicants’ directors, Dinesh Davendra Halai and Haiko Baker on 25.9.2025 and 26.9.2025. 4. The core grounds in support of the applications are that: 1. On 12.8.2025, the court issued an injunction barring the sale and transfer of the subject property. 2. On 13.8.2025, the 3rd interested party served the court orders upon all parties including the land registrar on 14.8.2025. 3. It also applied for an inhibition order on 14.8.2025. The booking form was issued and stamped by the 4th interested on the same date. 4. The 4th interested party and Madhav Bhandari disregarded the orders by transferring the property to the 5th interested party. 5. The 4th interested party then purported to register the inhibition order after illegally transferring the property to the 5th interested party. Responses 5. The administrator filed a replying affidavit sworn on 14.10.2025. He asserted that he is not in contempt as the subject order was issued and served on 12.8.2025 and 13.8.2025 respectively, it was already overtaken by events as the property was sold on 28.5.2025. 6. The 4th intended interested party filed a replying affidavit sworn by Abdi Hithar on 14.10.2025. The salient depositions were that: 1. The land registrar Kajiado did not wilfully and deliberately disobey the court order of 12.8.2025. It was a genuine mistake or misunderstanding as it had no intention to disobey the order. 2. It received an inhibition order on 14.8.2025 at the counter barring the sale of the subject property. It was booked as entry 248/8/25. 3. It wrote to the Deputy Registrar of this court on 21.8.2021 seeking confirmation of the authenticity of the inhibition order. 4. Via letter dated 21.8.2021, the Deputy Registrar confirmed that it was genuine. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7103/eng@2026-04-30 2

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5. It received the letter on 29.8.2025. By that time, a transfer had been entered on 25.8.2025 in favour of the 5th interested party. 6. It therefore registered a restriction against the green card for the suit property. It also issued summons to the 5th respondent’s director and Mohamed Ahmed Abdilahi to appear before it on 14.10.2025 for purposes of notifying them of the restriction placed and its implications but neither of the parties honoured the summons. 7. The 5th intended interested party filed a preliminary objection (PO) dated 14.10.2025. Its main contentions are that: 1. it has been improperly joined in the proceedings without leave of the court. 2. The 4th and 5th intended interested parties lack locus standi to participate in the proceedings. 3. The scope of the injunctive orders of 12.8.2025 granted injunctive relief limited solely to the sale of the suit property, not transfer, conveyance, registration or inhibition of any dealings in the suit property. 4. Any such interpretation or action would amount to usurpation of the jurisdiction conferred exclusively upon the Environment and Land Court under sections 68, 80 and 101 of the Land Registration Act. Submissions 8. The 1st interested party filed written submissions dated 23.10.2025. The administrator and the 5th intended interested party filed written submissions dated 28.11.2025 and 7.11.2025 respectively. 9. I have considered the submissions and authorities relied on by the respective parties. I will not rehash them, but I will consider them in relation to the issues they support or deny or as necessary in the analysis. Analysis and Determination Issues 10. The PO constitutes the first issue. It raises threshold issues. Is it potent? 11. The second issue is whether the applicants have made out a case for contempt of court against the administrator and the 4th interested party. Threshold of a PO 12. A PO ought to be on “a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence.” Oraro v Mbaja [2005] KEHC 3182 (KLR) 13. The 5th respondent faulted the 3rd interested party for failure to seek leave to join it and the 4th interested parties. It asserted that itself and the 4th interested party are strangers to the proceedings and that no orders can lawfully be issued for or against them. 14. Under Order 1 Rule 10(2) of the Civil Procedure Rules, the court may at any stage of the proceedings order that the name of any person who ought to have been joined, whether as plaintiff or defendant, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7103/eng@2026-04-30 3

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or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added. 15. A party may be joined, inter alia, because his presence will result in the complete settlement of all the questions involved in the proceedings or to protect the rights of a party who would otherwise be adversely affected in law. Meme v Republic, [2004] 1 EA 124 16. Questions have been raised regarding the propriety of the transfer of land owned by the company under administration to the 5th intended interested party by the 4th intended while there was a court order restraining the sale of the property. 17. I am satisfied that the joinder of the 4th and 5th intended interested parties is necessary for the complete adjudication of the questions in controversy because they have a proprietary interest in the subject property. 18. Therefore, I order that the 4th and 5th intended interested parties be added to the insolvency cause. 19. The 5th respondent asserted that the order of 12.8.2025 was limited to stopping a sale and did not create an inhibition. It argued that jurisdiction to issue inhibition or cancellation orders lies solely with the Environment and Land Court (ELC). The 5th interested party relied on sections 68, 80 and 101 of the Land Registration Act. 20. Sections 2 and 101 of the LRA provide that the court is the ELC and other courts having jurisdiction on matters of land. 21. Section 13 (2) of the Environmental and Land Court Act provides that the ELC has jurisdiction to hear disputes relating to inter alia, “contracts, choses in action or other instruments granting an enforceable interest in land. 22. Courts have held that the determinant of which court has jurisdiction is the “Predominant Purpose Test”. Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another [2016] eKLR 23. In determining jurisdiction, the Court of Appeal in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR) considered the dominant issue in the case. 24. In the matter at hand, the issue about the sale of the subject land has arisen within an insolvency matter under the power of the administrator in the course of administration of the company owning the land. It is the insolvency court which has the jurisdiction to supervise an administration of a company including sale of the debtor’s assets. This is the context in which the court issued the orders sought. 25. The applicants have raised concerns about whether the administrator complied with the Insolvency Act in the sale of the subject property which was a key asset in the company’s operations. 26. On 12.8.2025, the court issued orders that the suit property shall not be sold until 22.9.2025. 27. An inhibition is an order inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge. Section 68 of the Land Registration Act. 28. An inhibition order is in the nature of a prohibitory injunction. Mwambeja Ranching Company Limited & another v Kenya National Capital Corporation Limited (Kenyac) & 6 others [2015] eKLR 29. Guided by Article 165 of the Constitution, this court has the jurisdiction to issue an inhibition in a matter that it has jurisdiction over. Hence, the objection on the court’s jurisdiction fails. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7103/eng@2026-04-30 4

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30. The 5th interested party contended that the orders of 12.8.2025 were limited to stopping a sale and did not create an inhibition. It claimed that the order was overtaken by events as the property was sold before the orders were issued. 31. To my mind, this objection is not properly founded within the framework of a PO as it calls for the court to consider matters of fact and probe evidence. It therefore fails. 32. Similarly, the points on irregularity and voiding orders and the impossibility of purging contempt are not suitable for determination through a PO. The objections also fail. Contempt of court 33. The elements that must be established to make a case for contempt of court were highlighted in the literary work of Contempt in Modern New Zealand, as follows: “ The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: “ (1) The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant; (2) The defendant had knowledge of or proper notice of the terms of the order; (3) The defendant has acted in breach of the terms of the order; and (4) The defendant’s conduct was deliberate.” Nature of the order 34. The 5th respondent argued that the order of 12.8.2025 was not an inhibition. The 4th respondent did not question the nature the order. It also obtained confirmation of the issuance of an inhibition order from the Deputy Registrar. 35. As per paragraphs 26 and 27 above, it is my considered view that the order was also in the nature of an inhibition. Scope of the order 36. The 5th interested party argued that the scope of the orders did not cover the transfer of the property only its sale. 37. The process of the sale of land encompasses several steps including the the registration of the transfer. 38. The order was served on the administrator on 13.8.2025. The sale agreement was executed on 28.5.2025. The completion documents were forwarded to the purchasers advocates on 11.8.2025. 39. At the time of issuance and service of the subject order, the advocates representing the company had released the completion documents to the purchasers’ advocates. 40. The administrator contended that having already released the completion documents, he no longer had power to stop the process of transfer. 41. The 3rd respondent argued that the administrator confessed to dereliction of duty which includes making every decision in the best interest of the company. It highlighted the fact that the administrator was aware of the order 2 weeks before the transfer but opted not to act to stop it. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7103/eng@2026-04-30 5

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42. The 3rd respondent pointed out that the subject property was 120 acres and vital to the company’s continued existence as a going concern. That the property was a large-scale farm operated by the company on which it grew fiowers it exported among other cash crops and animals. 43. It was not disputed that the completion documents were released on 11.8.2025. This was prior to the issuance of the order of 12.8.2025. The order was served upon the administrator on 13.8.2025. 44. The events that followed were that the transfer was registered despite the 3rd party’s steps to apply for the registration of an inhibition. 45. The 4th interested party acknowledged receipt of the application for registration of an inhibition prior to the registration of the transfer. However, it claimed that the disobedience of the order was not deliberate as the registration of the transfer was due to a genuine mistake. The registrar attempted to explain the mistake seeking to purge the disobedience. He stated that he registered a restriction and called for return of the title to no avail. From his explanations and demeanour, he was not truthful as he was aware of the court order except he needed to verify it. There was clear deliberate delay to facilitate the registration and issuance of title herein. Therefore, as the sale of the land is an issue in these proceedings, the restriction shall remain until otherwise ordered by the court. 46. Once the completion documents had been released to the purchaser’s advocates, it was their work to attend the lodging of transfer of the property in favour of the purchaser at the Lands Registry. But, from the evidence by the registrar, the registration was done after the order had been duly lodged with his office and noted as per their procedure pending verification of the order. I have already stated that the restriction remain until otherwise ordered by the court. The purchaser is a party and shall participate in the proceedings. 47. I agree that the administrator may not have control over registration of transfer of the land. 48. However, despite the foregoing, the administrator did not lend to any evidence to show that he either notified the purchaser or its advocates about the order immediately he became aware of the order. He is an officer of the court under the Insolvency Act, thus, a minister of justice who should act in the interest of all parties in the administration including, the creditors and the company and prospects of its sustenance as a going concern. 49. This leads to the inference that the administrator did not act in good faith in the best interest of the company. This does not however reach the threshold for contempt of court as it has not been shown that the disobedience of the court order was wilful and deliberate. 50. The 3rd interested party sought the removal of the administrator. However, the term of the administrator lapsed on 6.11.2025. 51. In the upshot, the 2nd and 3rd interested party’s applications date 26.9.2026 and 24.9.2025 succeed partially to the extent that the restriction placed over the land shall remain until otherwise ordered by the court. Any prayer not specifically granted is deemed to be denied. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 30TH DAY OF APRIL, 2026. ............................... F. GIKONYO M. JUDGE In the presence of: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7103/eng@2026-04-30 6

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Ms Tambo for 3rd Interested Party. Ongeri/Allen Gichuhi/Makori for Administrator. Odongo for Interested Parties. Mohammed for 5th Interested Party. Odongo holding brief for 2nd Interested Party. CA - Ivan/Aggrey. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7103/eng@2026-04-30 7

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