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Gathagu & another v Thiongo & 2 others (Environment and Land Miscellaneous Application E358 of 2025) [2026] KEELC 3956 (KLR)

High Court of Kenya
30 June 2026
1,702 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court froze a disputed apartment and its rental income to protect buyers while their arbitration case is decided.

What this practically means

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Executive summary

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The applicants, who in 2018 agreed to purchase apartment A8 on title Nairobi Block 64/2037 (formerly Dagoretti/Kangemi/2037) from the 2nd respondent for Kshs.6,500,000, executed a letter of offer and deed of assignment and paid the full purchase price, service charges and legal fees into the client account of the project advocates, Messrs. Ratemo & Company Advocates. Construction, scheduled for completion by 30th June 2019, stalled. The applicants discovered an internal shareholders' arbitration among the developer's shareholders in which units were distributed among shareholders, and that the 1st respondent was collecting rental income from their unit. They filed a notice of motion dated 14th November 2025 under Section 7 of the Arbitration Act and Section 68 of the Land Registration Act seeking orders of inhibition against the suit property, registration of the inhibition by the chief land registrar, and remittance of rental income into an escrow account pending arbitration. The 3rd respondent, the developer and registered owner, opposed through its director Shilpa Narendra Hirani, contending it never received the purchase price, its role was construction only, transfer was contingent on internal allocation procedures, and that it did not intend to defeat the arbitration. The 1st respondent filed no response. The court applied the Safaricom v Ocean View Beach Hotel criteria and the Progressive Credit decision, found an arbitration agreement in clause 9 of the deed of assignment, found the subject matter under threat, and allowed the application: inhibition restraining dealings with the suit property pending arbitration, registration of the inhibition, remittance of rental income to an escrow account in the names of the 1st respondent and the applicants, and each party to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have satisfied the criteria for grant of an interim measure of protection pending completion of arbitral proceedings

Key legal issues

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01

Whether the criteria for grant of an interim measure of protection pending arbitration were satisfied

Holding

The court held that the applicants established the requisite conditions: an arbitration agreement existed (clause 9 of the deed of assignment), the subject matter was under threat, and the measures sought were appropriate protective measures pending arbitration.

Reasoning

The court applied the Safaricom v Ocean View criteria: existence of an arbitration agreement, threat to the subject matter, appropriate measure on the merits, and the period of the measure. It found undisputed that the applicants signed a deed of assignment containing a clause 9 arbitration agreement, paid the purchase price in full, and that respondents had not delivered vacant possession since the project stalled. The 1st respondent filed no response and continued collecting rent. Applying Progressive Credit, the court concluded protective measures pending arbitration were warranted.

p. 4

Legal principles established

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  • The High Court may grant interim measures of protection under Section 7 of the Arbitration Act in support of the arbitral process, independent of the civil procedure requirements for an injunction

Court orders

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  1. 1.An order of inhibition restraining any dealings with the suit property, pending the hearing and determination of the arbitration proceedings
  2. 2.The chief land registrar, Nairobi district registry to register an inhibition against the suit property in the appropriate register
  3. 3.All the rental income from the suit property to be remitted into an escrow account in the names of the 1st respondent and the applicants, pending the hearing and determination of the arbitration proceedings
  4. 4.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 7(1) of the Arbitration Act and Section 68 of the Land Registration Act

Relief refused

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Interim inhibition pending hearing and determination of the application inter partes (order 2 of the motion - spent)

The application was allowed as prayed in final form pending arbitration; no separate interim order was issued

Costs of the application borne by the respondents jointly and severally

The court instead ordered each party to bear its own costs

p. 4

Costs

Each party to bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the applicants have established the conditions requisite for the grant of protective measures pending arbitration and therefore the notice of motion application dated 14th November, 2025 is merited
p. 4criteria for interim measures under Section 7 Arbitration Act
An order of inhibition is hereby issued restraining any dealings with the suit property, pending the hearing and determination of the arbitration proceedings.
p. 4final orders - inhibition
The chief land registrar, Nairobi district registry is hereby ordered to register an inhibition against the suit property in the appropriate register.
p. 2final orders - registration of inhibition
I hereby direct that all the rental income from the suit property be remitted into an escrow account in the names of the 1st respondent and the applicants, pending the hearing and determination of the arbitration proceedings.
p. 4final orders - escrow of rental income
Each party to bear its own costs.
p. 4costs
the essentials which the court must take into account before issuing the interim measures of protection are:1. the existence of an arbitration agreement. 2. whether the subject matter of arbitration is under threat.
p. 3Safaricom v Ocean View test as stated by the court

Issues in the judgment

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minor

The judgment does not state the case number or the names of the parties in the coram; parties are referred to only by number, and the 1st and 2nd respondents' individual names are not given in the ruling text

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, "Gathagu & another v Thiongo & 2 others (Environment and Land Miscellaneous Application E358 of 2025) [2026] KEELC 3956 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3956/eng@2026-06-30

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