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ELCDismissedNot stated in the judgment text provided· [2026] KEELC 3887 (KLR)

Nyandoro & 2 others v Focus Homes Ltd & 2 others (Land Case E063 of 2026) [2026] KEELC 3887 (KLR)

Environment and Land Court / High Court of Kenya at Nairobi (court not expressly named in the extract)
29 June 2026
COChristine Ochieng
2,828 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Buyers of charged Kenyan property lost their bid to stop a bank auction because they never obtained a partial discharge of the charge before purchasing.

What this practically means

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Executive summary

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The Plaintiffs, purchasers of Apartments Nos. 5, 9 and 10 on L.R. No. 13/369 (I.R. No. 69578), bought the units between 2010 and 2015, paid the full purchase price (remitted directly to the lender), and have occupied them since. They moved the court by Notice of Motion dated 20th February 2026 seeking a temporary injunction restraining the Defendants from auctioning, selling, transferring or disposing of the apartments, alleging the 1st Defendant held the units in trust for them and that the 2nd Defendant's threatened auction was based on a forged 2018 charge. The 1st Defendant supported the application, asserting the 2018 registered charge materially differed from the unregistered 2013 charge and that the lender refused to release the units from security despite full payment. The 2nd Defendant, which acquired the loan book from Spire Bank Limited, opposed, asserting a superior right under the charge, a crystallised statutory power of sale, and res judicata arising from HCCC 373 OF 2018, in which Mulwa J permitted the sale. The court framed a single issue: whether the Plaintiffs met the Giella v Cassman Brown threshold. It found no prima facie case: the apartments were purchased subject to an existing charge, the 1st Defendant admitted indebtedness, the Plaintiffs never sought partial discharge before purchase, and the HCCC 373 OF 2018 decision permitting sale remained undisturbed. Applying Nguruman, the court declined to consider irreparable harm and balance of convenience, dismissed the application, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case for an interlocutory injunction against exercise of the chargee's statutory power of sale

Holding

They did not; the apartments were purchased subject to an existing charge and the court in HCCC 373 OF 2018 had already allowed sale, a decision not set aside

Reasoning

The court applied Giella v Cassman Brown and the Mrao definition of a prima facie case. Because the Plaintiffs bought the apartments after the land was charged, and the 1st Defendant admitted indebtedness, the 2nd Defendant's statutory power of sale had crystallised on default. Further, the prior judgment in HCCC 373 OF 2018 permitting sale remained undisturbed, so the Plaintiffs could not show a right at stake warranting interruption of the chargee's remedy.

02

Whether the other Giella limbs (irreparable harm, balance of convenience) required determination

Holding

No; they were not considered because the Plaintiffs failed on the first limb

Reasoning

Relying on Nguruman Ltd v Jan Bonde Nielsen, the court held that where a party fails to establish a prima facie case, irreparable injury and balance of convenience need not be considered. The application was therefore determined solely on the first limb and dismissed.

p. 6

Legal principles established

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  • A purchaser who buys property subject to an existing charge should first seek partial discharge of the charge in respect of the specific property before purchase
  • A chargee is entitled to exercise its statutory power of sale upon default even against apartments sold to third parties, where the charge remains undischarged

Court orders

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  1. 1.The Notice of Motion application dated 20th February 2026 is unmerited and is disallowed
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Original civil jurisdiction over the Plaintiffs' Notice of Motion dated 20th February 2026 in a pending suit (no specific constitutional/statutory provision cited)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nyandoro & 2 others v Focus Homes Ltd & 2 others (Land Case E063 of 2026) [2026] KEELC 3887 (KLR)", Case Analysis (2026). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3887/eng@2026-06-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.