REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E120 OF 2025
ANDREW KITUYI WAFULA T/A
THE ROSSYLANDS HOTEL …………………………………..APPLICANT
FAMILY BANK LIMITED ………………………..…………RESPONDENT
RULING
A. BACKGROUND
1. The Appellant/Applicant herein filed a suit in the Bungoma Chief Magistrates Court-Civil Suit No. E470 of 2018 together with an application dated 19th October 2018, seeking temporary injunction of the sale of the subject property as had then been commenced by the Respondent due to default of the loan facility by the Appellant/Applicant herein.
2. The Chief Magistrate Court issued an interim injunction on 29th October 2018, over the sale by auction pending the hearing and determination of the application. On 6th September 2019, the trial Court delivered its Ruling and proceeded to dismiss the Appellant/Applicant’s application.
3. The Appellant quickly proceeded to file a Memorandum of Appeal which became Bungoma High Court Civil Appeal No. 87 of 2019.
4. Vide an application dated 30th September 2019, the Appellant/Applicant herein sought stay of execution of the Ruling dated 6th September 2019, pending hearing and determination of the Appeal and a temporary stay of execution pending the hearing and determination of the application inter-partes.
5. Due to non-prosecution of the Appellant/Applicant’s Appeal at the Bungoma High Court, the Respondent herein proceeded to file an application dated 18th March 2021, seeking to have the Appeal dismissed for want of prosecution.
6. Prior to the full determination of aforestated application, the parties herein recorded a consent on 19th February 2024, which the Court adopted as follows:
a. The Appellant/Applicant is allowed to liquidate the decretal sum by way of instalments of Kshs.150,000/= with effect from 1st March 2024, until payment in full;
b. That in default of payment of an instalment execution do issue.
c. Costs of the Appeal awarded to the Respondent.
d. That this Appeal is now marked as settled.
7. Despite the aforementioned order that compromised the initial Appeal- Bungoma High Court Civil Appeal No. 87 of 2019, the Appellant/Applicant defaulted the terms of the consent Judgment and the Respondent in compliance with the said order proceeded with execution as per order (b) of the consent Judgment.
27. The Appellant/Applicant proceeded to file a Motion Application dated 15th May 2024, in Bungoma High Court Civil Appeal No. 87 of 2019, seeking to forestall the sale by auction of the subject property by the Respondent, but the same was dismiss and the Appeal was marked as closed.
28. The Appellant/Applicant again, filed an application dated 20th March 2025, before the Bungoma Chief Magistrate in Bungoma Chief Magistrate Court Civil Suit No. E470 of 2018-Andrew Kituyi Wafula T/A The Rossyland Hotel v Family Bank Limited seeking stay of the sale of the subject property, BOKOLI/BOKOLl/1410.
29. On 8th July 2025, the trial Court gave the following final orders with regards to the application dated 20th March 2025:-
a. The Defendant is at liberty to exercise its statutory power of sale.
b. The Defendant must comply with the law by issuing all the statutory notices before exercising the statutory power of sale.
c. The application dated 20th March 2025, is allowed only to the extent hereinabove stated.
d. As either party partially succeeded in the application, I order each party to bear their own cost of the application
30. It is imperative to note that in the application dated 20th March 2025, the Appellant/Applicant herein only faulted the Respondent for not issuing the 45-day notice through a licensed auctioneer and a notification of sale (though this had previously been issued). All other statutory notices were not challenged and had already been issued to the Appellant/Applicant.
31. Though the Respondent had already issued the contested notices, it proceeded to re-issue the 45-day notice to the Appellant/Applicant in compliance with the Court Ruling and proceeded to thereafter advertise the subject property for sale by public auction given that the Appellant/Applicant made no attempt to redeem the property through making the requisite payments within the notice period.
32. The Appellant thereafter, being aggrieved by the decision of the Chief Magistrate Court filed this instant appeal and this instant application with the sole purpose of stopping the sale of the suit property.
B. APPLICATION
33. By way of a Motion application dated 22nd October 2025, the Appellant/Applicant herein sought the following prayers: -
a. Spent
b. That an order of Injunction do issue restraining the respondent from selling or transferring the land parcel known as BOKOLI/BOKOLl/1410 scheduled for the 7th November 2025, or on any other date pending the hearing and determination of this application in the first instance.
c. That an order of Injunction do issue restraining the respondent from selling or transferring the land parcel known as BOKOLI/BOKOLl/1410 scheduled for the 7th November 2025, or on any other date pending the hearing and determination of this appeal emanating from the decision made in Bungoma Chief Magistrate Court Civil Suit No. E470 of 2018 :- Andrew Kituyi Wafula T/A The Rossyland Hotel v Family Bank Limited.
d. That the costs of this application be provided for.
34. The Respondent in opposition to this instant application filed its Replying Affidavit sworn by Ms. Sylvia Wambani-Deya on 24th October 2025.
35. Subsequently the Appellant/Applicant filed his Supplementary Affidavit sworn on 12th November 2025, together with submissions dated the 12th November 2025.
36. Vide Court directions, parties herein were ordered to canvass the Motion application by way of written submissions. Both parties complied with this Court directive.
C. ISSUE FOR DETERMINATION
37. The issue for determination is whether the Motion application dated 22nd October 2025, has merit.
D. ANALYSIS & DETERMINATION
38. The gist of this application is that the Appellant/Applicant seeks an injunction against the Respondent’s sale or transfer of land parcel known as BOKOLI/BOKOLl/1410 until his substantive appeal and this instant application is determined.
39. In considering whether or not to grant an injunction, guidance is found in the case of Joel Kipkurui arap Koech v Alice Wambui Magandu & 3 others [2018] KEELC 2491 (KLR) in which the Court relied on other decided cases as follows:
“In the case of Suleiman v. Amboseli Resort Ltd (2004) KLR 589, Ojwang Ag. J (as he then was) stated thus: “Counsel for the Defendant urged that the shape of the Law governing the grant of injunctive relief was long ago, in Giella v Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel in that point, for the law has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before. ……Traditionally, on the basis of the well accepted principles set out by the Court of Appeal in Giella v Cassman Brown, the court has to consider the following questions before granting injunctive relief:
i) Is there a prima facie case…..
ii) Does the applicant stand to suffer irreparable harm….
iii) On which side does the balance of convenience lie……
Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The court in responding to prayers for interlocutory injunctive relief should always opt the lower rather than the higher risk of injustice… if granting the applicant’s prayers will support the motion towards full hearing, then should grant those prayers...”
40. The first question is: Has the Appellant/Applicant established a prima facie case? From the circumstances of the case, there is a pending substantive appeal through which the Appellant/Applicant contends the sale of the suit property. The Appellant/Applicant has also raised arguments through the application in a bid to move the Court to order in his favour. He raises arguable points that are valid in the eyes of the Court by challenging the issue of the 45-day notice prior to sale and whether the Respondent was in breach of rule 15 (d) of the Auctioneers Rules 1997. In the case of Kano & another v Cabinet Secretaty Ministry of Interior & Co-ordination & another [2025] KEHC 17299 (KLR), the Court stated thus regarding a prima facie case:
“It is trite that when a court is called upon to determine whether a prima facie case has been established, it should not delve into a detailed analysis of the facts and law but should focus on determining whether the applicant has put forward a case that is arguable and not frivolous. In Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR the Court stated that:
“It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evidence of a likelihood of success. The prima facie case ought to be beyond a speculative basis...””
41. The second question is: Will the Appellant/Applicant be likely to suffer irreparable harm if the orders are denied? Through this application, the Appellant/Applicant has indicated that it will suffer irreparable damage should the Respondent proceed to sell the suit property and its appeal before this Court will be defeated. Accordingly, at this point in time, the Court must limit its focus on how to preserve the suit land until the appeal is determined.
42. From this angle, the Appellant/Applicant has demonstrated that it will suffer irreparable harm if the orders are not granted. In fact, if the Respondent is left to alienate the suit land, the pending substantive appeal will be rendered a nullity, and judicial time will have been wasted a great deal. Moreover, this kind of loss cannot be compensated by way of damages because if the orders are denied and the land is alienated, the Appellant/Applicant loses a chance to ventilate its appeal. Contrariwise, the Respondent will reap from the alienation prior to the hearing of the Appellant/Applicant’s appeal.
43. As to where the balance of convenience lies, this factor is a tie-breaker where the Court is not sure of the first two parameters in Giella v Cassman Brown (1973) EA 358. In the case of Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] KEHC 7263 (KLR), the Court stated thus, regarding convenience:
“Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the applicant will suffer if the injunction is refused is greater than that which the respondent will suffer if it is granted lies on the applicant.”
44. It has been clarified herein that the Appellant/Applicant will suffer grater prejudice if the orders sought are not granted. The Respondent’s arguments are to the effect that the Appellant/Applicant conduct and approach of this Court with unclean hands has once again made their efforts to enjoy their fruits of a successful judgment a long dream. Further, the Respondent argued that it observed the service of the 45-day notice to the Appellant/Applicant herein. Clearly, this argument should be raised during hearing of the substantive appeal. It is also clear that the Respondent is keen to sell the land so that the loan extended to the Appellant/Applicant herein. It is also keen to have the substantive appeal concluded. Thus, if the Court grants the orders sought, the Respondent will suffer no harm as compared to the harm the Appellant/Applicant will suffer.
E. CONCLUSION
45. On the balance I find that the Appellant’s application dated 22nd October 2025 has merit. Accordingly, the orders that commend themselves to me and which I hereby grant are as follows:
a. Temporary injunction is hereby issued against the Respondent restraining him whether by himself, his agents and/or servants from selling or transferring the land parcel known as BOKOLI/BOKOLl/1410 pending the hearing and determination of this application in the first instance.
b. Temporary injunction is hereby issued against the Respondent restraining him whether by himself, his agents and/or servants from selling or transferring the land parcel known as BOKOLI/BOKOLl/1410 pending the hearing and determination of this appeal emanating from the decision made in Bungoma Chief Magistrate Court Civil Suit No. E470 of 2018: - Andrew Kituyi Wafula T/A The Rossyland Hotel v Family Bank Limited.
c. That the injunctive orders above shall only apply on the condition that the Appellant/Applicant deposits 50% of the outstanding loan amount with the Respondent within 30 days from the date hereof and in the event of default the injunctive orders shall lapse.
d. That the costs of this application shall abide the outcome of the appeal.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 26th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Mr Wambua Gikamwa for the Applicant/Appellant
Mr Mugo for the Respondent
Peter Machoni – Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E120 OF 2025
ANDREW KITUYI WAFULA T/A
THE ROSSYLANDS HOTEL …………………………………..APPLICANT
FAMILY BANK LIMITED ………………………..…………RESPONDENT
RULING
A. BACKGROUND
1. The Appellant/Applicant herein filed a suit in the Bungoma Chief Magistrates Court-Civil Suit No. E470 of 2018 together with an application dated 19th October 2018, seeking temporary injunction of the sale of the subject property as had then been commenced by the Respondent due to default of the loan facility by the Appellant/Applicant herein.
2. The Chief Magistrate Court issued an interim injunction on 29th October 2018, over the sale by auction pending the hearing and determination of the application. On 6th September 2019, the trial Court delivered its Ruling and proceeded to dismiss the Appellant/Applicant’s application.
3. The Appellant quickly proceeded to file a Memorandum of Appeal which became Bungoma High Court Civil Appeal No. 87 of 2019.
4. Vide an application dated 30th September 2019, the Appellant/Applicant herein sought stay of execution of the Ruling dated 6th September 2019, pending hearing and determination of the Appeal and a temporary stay of execution pending the hearing and determination of the application inter-partes.
5. Due to non-prosecution of the Appellant/Applicant’s Appeal at the Bungoma High Court, the Respondent herein proceeded to file an application dated 18th March 2021, seeking to have the Appeal dismissed for want of prosecution.
6. Prior to the full determination of aforestated application, the parties herein recorded a consent on 19th February 2024, which the Court adopted as follows:
a. The Appellant/Applicant is allowed to liquidate the decretal sum by way of instalments of Kshs.150,000/= with effect from 1st March 2024, until payment in full;
b. That in default of payment of an instalment execution do issue.
c. Costs of the Appeal awarded to the Respondent.
d. That this Appeal is now marked as settled.
7. Despite the aforementioned order that compromised the initial Appeal- Bungoma High Court Civil Appeal No. 87 of 2019, the Appellant/Applicant defaulted the terms of the consent Judgment and the Respondent in compliance with the said order proceeded with execution as per order (b) of the consent Judgment.
27. The Appellant/Applicant proceeded to file a Motion Application dated 15th May 2024, in Bungoma High Court Civil Appeal No. 87 of 2019, seeking to forestall the sale by auction of the subject property by the Respondent, but the same was dismiss and the Appeal was marked as closed.
28. The Appellant/Applicant again, filed an application dated 20th March 2025, before the Bungoma Chief Magistrate in Bungoma Chief Magistrate Court Civil Suit No. E470 of 2018-Andrew Kituyi Wafula T/A The Rossyland Hotel v Family Bank Limited seeking stay of the sale of the subject property, BOKOLI/BOKOLl/1410.
29. On 8th July 2025, the trial Court gave the following final orders with regards to the application dated 20th March 2025:-
a. The Defendant is at liberty to exercise its statutory power of sale.
b. The Defendant must comply with the law by issuing all the statutory notices before exercising the statutory power of sale.
c. The application dated 20th March 2025, is allowed only to the extent hereinabove stated.
d. As either party partially succeeded in the application, I order each party to bear their own cost of the application
30. It is imperative to note that in the application dated 20th March 2025, the Appellant/Applicant herein only faulted the Respondent for not issuing the 45-day notice through a licensed auctioneer and a notification of sale (though this had previously been issued). All other statutory notices were not challenged and had already been issued to the Appellant/Applicant.
31. Though the Respondent had already issued the contested notices, it proceeded to re-issue the 45-day notice to the Appellant/Applicant in compliance with the Court Ruling and proceeded to thereafter advertise the subject property for sale by public auction given that the Appellant/Applicant made no attempt to redeem the property through making the requisite payments within the notice period.
32. The Appellant thereafter, being aggrieved by the decision of the Chief Magistrate Court filed this instant appeal and this instant application with the sole purpose of stopping the sale of the suit property.
B. APPLICATION
33. By way of a Motion application dated 22nd October 2025, the Appellant/Applicant herein sought the following prayers: -
a. Spent
b. That an order of Injunction do issue restraining the respondent from selling or transferring the land parcel known as BOKOLI/BOKOLl/1410 scheduled for the 7th November 2025, or on any other date pending the hearing and determination of this application in the first instance.
c. That an order of Injunction do issue restraining the respondent from selling or transferring the land parcel known as BOKOLI/BOKOLl/1410 scheduled for the 7th November 2025, or on any other date pending the hearing and determination of this appeal emanating from the decision made in Bungoma Chief Magistrate Court Civil Suit No. E470 of 2018 :- Andrew Kituyi Wafula T/A The Rossyland Hotel v Family Bank Limited.
d. That the costs of this application be provided for.
34. The Respondent in opposition to this instant application filed its Replying Affidavit sworn by Ms. Sylvia Wambani-Deya on 24th October 2025.
35. Subsequently the Appellant/Applicant filed his Supplementary Affidavit sworn on 12th November 2025, together with submissions dated the 12th November 2025.
36. Vide Court directions, parties herein were ordered to canvass the Motion application by way of written submissions. Both parties complied with this Court directive.
C. ISSUE FOR DETERMINATION
37. The issue for determination is whether the Motion application dated 22nd October 2025, has merit.
D. ANALYSIS & DETERMINATION
38. The gist of this application is that the Appellant/Applicant seeks an injunction against the Respondent’s sale or transfer of land parcel known as BOKOLI/BOKOLl/1410 until his substantive appeal and this instant application is determined.
39. In considering whether or not to grant an injunction, guidance is found in the case of Joel Kipkurui arap Koech v Alice Wambui Magandu & 3 others [2018] KEELC 2491 (KLR) in which the Court relied on other decided cases as follows:
“In the case of Suleiman v. Amboseli Resort Ltd (2004) KLR 589, Ojwang Ag. J (as he then was) stated thus: “Counsel for the Defendant urged that the shape of the Law governing the grant of injunctive relief was long ago, in Giella v Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel in that point, for the law has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before. ……Traditionally, on the basis of the well accepted principles set out by the Court of Appeal in Giella v Cassman Brown, the court has to consider the following questions before granting injunctive relief:
i) Is there a prima facie case…..
ii) Does the applicant stand to suffer irreparable harm….
iii) On which side does the balance of convenience lie……
Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The court in responding to prayers for interlocutory injunctive relief should always opt the lower rather than the higher risk of injustice… if granting the applicant’s prayers will support the motion towards full hearing, then should grant those prayers...”
40. The first question is: Has the Appellant/Applicant established a prima facie case? From the circumstances of the case, there is a pending substantive appeal through which the Appellant/Applicant contends the sale of the suit property. The Appellant/Applicant has also raised arguments through the application in a bid to move the Court to order in his favour. He raises arguable points that are valid in the eyes of the Court by challenging the issue of the 45-day notice prior to sale and whether the Respondent was in breach of rule 15 (d) of the Auctioneers Rules 1997. In the case of Kano & another v Cabinet Secretaty Ministry of Interior & Co-ordination & another [2025] KEHC 17299 (KLR), the Court stated thus regarding a prima facie case:
“It is trite that when a court is called upon to determine whether a prima facie case has been established, it should not delve into a detailed analysis of the facts and law but should focus on determining whether the applicant has put forward a case that is arguable and not frivolous. In Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR the Court stated that:
“It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evidence of a likelihood of success. The prima facie case ought to be beyond a speculative basis...””
41. The second question is: Will the Appellant/Applicant be likely to suffer irreparable harm if the orders are denied? Through this application, the Appellant/Applicant has indicated that it will suffer irreparable damage should the Respondent proceed to sell the suit property and its appeal before this Court will be defeated. Accordingly, at this point in time, the Court must limit its focus on how to preserve the suit land until the appeal is determined.
42. From this angle, the Appellant/Applicant has demonstrated that it will suffer irreparable harm if the orders are not granted. In fact, if the Respondent is left to alienate the suit land, the pending substantive appeal will be rendered a nullity, and judicial time will have been wasted a great deal. Moreover, this kind of loss cannot be compensated by way of damages because if the orders are denied and the land is alienated, the Appellant/Applicant loses a chance to ventilate its appeal. Contrariwise, the Respondent will reap from the alienation prior to the hearing of the Appellant/Applicant’s appeal.
43. As to where the balance of convenience lies, this factor is a tie-breaker where the Court is not sure of the first two parameters in Giella v Cassman Brown (1973) EA 358. In the case of Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] KEHC 7263 (KLR), the Court stated thus, regarding convenience:
“Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the applicant will suffer if the injunction is refused is greater than that which the respondent will suffer if it is granted lies on the applicant.”
44. It has been clarified herein that the Appellant/Applicant will suffer grater prejudice if the orders sought are not granted. The Respondent’s arguments are to the effect that the Appellant/Applicant conduct and approach of this Court with unclean hands has once again made their efforts to enjoy their fruits of a successful judgment a long dream. Further, the Respondent argued that it observed the service of the 45-day notice to the Appellant/Applicant herein. Clearly, this argument should be raised during hearing of the substantive appeal. It is also clear that the Respondent is keen to sell the land so that the loan extended to the Appellant/Applicant herein. It is also keen to have the substantive appeal concluded. Thus, if the Court grants the orders sought, the Respondent will suffer no harm as compared to the harm the Appellant/Applicant will suffer.
E. CONCLUSION
45. On the balance I find that the Appellant’s application dated 22nd October 2025 has merit. Accordingly, the orders that commend themselves to me and which I hereby grant are as follows:
a. Temporary injunction is hereby issued against the Respondent restraining him whether by himself, his agents and/or servants from selling or transferring the land parcel known as BOKOLI/BOKOLl/1410 pending the hearing and determination of this application in the first instance.
b. Temporary injunction is hereby issued against the Respondent restraining him whether by himself, his agents and/or servants from selling or transferring the land parcel known as BOKOLI/BOKOLl/1410 pending the hearing and determination of this appeal emanating from the decision made in Bungoma Chief Magistrate Court Civil Suit No. E470 of 2018: - Andrew Kituyi Wafula T/A The Rossyland Hotel v Family Bank Limited.
c. That the injunctive orders above shall only apply on the condition that the Appellant/Applicant deposits 50% of the outstanding loan amount with the Respondent within 30 days from the date hereof and in the event of default the injunctive orders shall lapse.
d. That the costs of this application shall abide the outcome of the appeal.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 26th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Mr Wambua Gikamwa for the Applicant/Appellant
Mr Mugo for the Respondent
Peter Machoni – Court Assistant