Mathew Musau Kithilu v Co-operative Bank of Kenya Limited, Loneview Developers Limited & Suraya Property Group Limited

respondent or Co-op Bank) for a colossal sum of Ksh. 1,000,400,000.00. How this Page 2 of

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came to be is not agreed in divergent explanations by Mathew Musau Kithilu (Mathew or the applicant) and Co-op Bank. 2. At one time the suit property, then land reference 7149/24, was registered in the name of Sebastian Kathilu, the father of Mathew. Mathew explains that sometime on 24th July 2008, he was approached by Mr. Peter Muraya of Suraya Property Group Limited (the 3rd respondent or Suraya) with an offer to develop maisonettes on the suit property on a joint venture basis. The property was then transferred to Mathew. Changes to the arrangement were made so that they would be an outright sale of the property to Suraya at a consideration of Ksh. 45,000,000.00 each to Sebastian and Mathew. There was default over time and a Settlement Agreement was reached under which Mathew took possession of 10 units. These were to be discharged so that Mathew assumes full ownership but Co-op Bank has declined and issued notices upon the tenants occupying the units to vacate. 3. Co-op Bank asserts that it is a stranger to any arrangement or agreement made between Mathew and Suraya which would in any event be a nullity in the face of the original and Page 3 of

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subsequent Page 4 of

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mortgage finance facilities it granted to Loneview. The Bank contends that the alleged arrangement is intended to defeat its interest as a financier of the said development in respect of which a sum of Ksh. 1,395,767, 264.68 was due and owing as at 26th October 2023. 4. The rival positions were taken up before the Environment and Land Court at Machakos in ELC Case No. E028 of 2023 in which Mathew sued the three respondents. Alongside the suit, Mathew filed a notice of motion dated 28 th September 2023 seeking injunctive orders to restrain the Bank from interfering, dealing or entering the units he asserts to belong to him. 5. In a ruling of 29th July 2024, Christine Ochieng, J found that Mathew had failed to establish a prima facie case and dismissed the motion. Aggrieved, Mathew filed a notice of appeal dated 31st July 2024 evincing an intention to appeal against the decision to this Court and is now before us in notice of motion dated 11 th September 2024 premised on Rule 5(2)(b) of the Court of Appeal Rules in which he prays, in the main, that; “Pending the hearing and determination of the intended appeal, 1st Defendants, and their Page 5 of

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agents, servants by way of an or employees Page 6 of be retrained

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interlocutory injunction from entering or in any other way interfering with the properties held by the Plaintiff at Loneview Estate being Maisonette No. 3A, Apartments No. A3/12, B2/09, B2/10, B3/09, B4/10, C1/09, E3/09/, F2/09, F2/10 pending the hearing and determination of this application.” (sic) 6. We have considered the motion, the positions taken by Mathew and the Bank, and the submissions filed herein on their behalf as highlighted by learned counsel Ms. Chania holding brief for Dr. Musau for Mathew and learned counsel Mr. Mubea for the Bank. 7. It is common ground that for a Rule 5(2)(b) application to succeed then it must meet the twin tests that the appeal or intended appeal is arguable and will be rendered nugatory if stay or an injunction is not granted, both tests conjunctively (see for example Stanley Kinyanjui Kangethe v Tony Keter & others [2013] eKLR). 8. Even if we were to find that the intended appeal is arguable still the motion is for refusal as it does not surmount the second limb. 9. Mathew asserts that he has a tangible interest in the units claimed in the suit property and has been in possession of Page 7 of

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them since the year 2015 and will therefore suffer substantial loss that Page 8 of

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cannot be compensated by way of damages, given his investment in the properties, should the Bank exercise its statutory power of sale. He contends that exercise of the statutory power of sale is not reversible. 10. Yet at the core of Mathew’s case, as can be gleaned from agreement of 12th September 2015, is that it entered into the arrangement so as to secure “compensation” from Suraya on account of the latter’s failure to fully pay the consideration to him and his father for the purchase of the suit property. The claim by Mathew against Suraya was monetary in nature and by extension of similar character against the Bank should it be adjudged that he has a legitimate claim against the Bank. 11. In the affidavit sworn by Florence Njuguna, on behalf of the Bank, she asserts that the Bank is a first-tier bank in a financial position to meet an award that may be made against it in favour of Mathew should his claim ultimately prevail. This assertion of financial muscle and ability has not been refuted by Mathew. In the circumstances the intended appeal by Mathew is unlikely to be rendered nugatory even if the injunction sought is not granted. Page 9 of

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12. The notice of motion dated 11th September 2024 is without merit. It is hereby dismissed with Costs to the 1 st respondent. 13. In closing we apologise to the parties for the delay in delivering this short Ruling. We were under the mistaken position that we had long done so. Dated and delivered at Nairobi this 25th day of September 2026. D. K. MUSINGA ………………………..…………. JUDGE OF APPEAL F. TUIYOTT ……………………….………. JUDGE OF APPEAL G. V. ODUNGA ……………………..…………. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 10

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