'THE REPUBLIC OF KENYA
IN THE HIGHCOURT OF KENYA AT MACHAKOS
CASE NO. HCCC E029 OF 2024
AGNES NDUNGE MUTISYA …………….………………PLAINTIFF/APPLICANT
VERSUS
EQUITY BANK KENYA LTD …………...…… 1ST DEFENDANT/RESPONDENT
ANTIQUE AUCTIONS AGENCIES …………. 2ND DEFENDANT/RESPONDENT
SUN GLAM HOTEL LTD …………..…….….. 3RD DEFENDANT/RESPONDENT
RULING
Introduction
1. The Plaintiff/ Applicant filed the Notice of Motion application dated 18/11/2024 seeking orders of an interim injunction restraining the Defendant herein from offering for sale, selling, taking possession of or in any way disposing off the whole of land parcel LR NO. Machakos town Block 3/905 pending the hearing and determination of the main suit. The Application is supported by supporting affidavit sworn by the Plaintiff/Applicant herein on 18th November 2024.
2. The application is premised on the following grounds:-
a The Plaintiff/Applicant is the absolute registered owner of land parcel number LR NO. MACHAKSO TOWN BLOCK 3/905.
b The 2nd Defendant/ Respondent has advertised the suit property for sale and transfer vide public auction for recovery monies advanced to the 3rd Defendant/Applicant in whose favour Plaintiff/Applicant acted as a guarantor.
c The intended sale is a nullity as the Respondents failed to follow the laid down procedural law as required under the Land Act as no statutory notice of sale was issued to the plaintiff pursuant to section 96(2) of the Land Act, 2012. The respondents also failed to issue the Plaintiff with a proper statutory notice that complies with section 90(1) of the Land Act.
d The Defendants failed to conduct a forced valuation of the property has been carried out in accordance to Sec 97 of the Land Act.
e That the 1st Defendant/Respondent has not exhausted all avenues to recover the loan facility advanced to the 3rd Defendant/ Respondent and the Plaintiff/Applicant stands to suffer in her capacity as a guarantor is the forced sale is allowed to proceed without proper notice to herself.
f The plaintiff has a prima facie case within probability of success and the plaintiff/Applicant stands to suffer irreparable loss and damages unless an order of injunction is issued.
3. The application is opposed by the 1st Defendant/Applicant through a Replying
affidavit sworn by Jackson Mugo on 27/1/2024. The 1st Defendant/Respondents contends that:-
a indeed, on 7th December 2022, the 1st Defendant advanced a secured business loan facility to the 3rd Defendant herein amounting to Kshs.16,000,000/ = for purposes of purchase, installation and commissioning of passenger lift plus lift support structure with all controls and safety gear and loans payoff.
b the business loan facility advanced to the 3rd Defendant herein was to be repaid within a period of 48 months as per a copy of the Letter of Offer dated 7th December 2022.
c. furthermore, the business loan facility was secured by a personal guarantee by one William Mutisya Mbaluto, a director of the 3rd Defendant, and the Applicant herein, a guarantee that was further supported by registration of a legal charge of Kshs.19,500,000/= over her property TITLE NUMBER MACHAKOS TOWN BLOCK 3/905 in favour of the 1st Defendant herein as per the copies of the CR12 and Deeds of Guarantee executed by the Applicant and William Mutisya Mbaluto all dated 29th December 2021.
d. the 3rd Defendant herein failed to honour its obligations in making the monthly payments as required which caused the 1st Defendant to issue a statutory notice dated 17th November 2023.
e. the said Statutory Notice issued pursuant to Section 90 of the Land Act, 2012, Laws of Kenya was issued to the Plaintiff/ Applicant and the director of the 3rd Defendant herein, who were duly served vide all their provided registered post office box numbers.
f. upon expiry of the 90 days, on 11th April 2024, the 1st Defendant then issued to the Applicant and the director of the 3rd Defendant herein with a Statutory Notice to Sell issued under Section 96 (2) of the Land Act as per the copies of the Statutory Notice to Sell and the List of Registered packets demonstrating service.
g. the issuance of the Statutory Notices to the Applicant and the 3rd Defendant herein prompted the 3rd Defendant to make a payment proposal to the 1st Defendant through a letter dated 13th June 2024 but which was never honoured by the 3rd Defendant
h. due to the failure of the 3rd Defendant and/or Applicant in honouring their obligations, the 1st Defendant then proceeded to instruct the 2nd Defendant herein to proceed with the statutorily provided process of auction.
i. on various dates of 17th September 2024 and 18th September 2024, the 2nd Defendant then proceeded to serve the Applicant and the director of the 3rd Defendant herein with the 45 days redemption notice as required under the law as per the copy of the Redemption notice dated 17th September 2024, Payment receipts for postage and the Certificate of Service dated 23rd September 2024.
j. additionally, on 30th October 2024, the 1st Defendant instructed Transcountry Valuers Ltd to undertake valuation of the charged property, which was duly undertaken and a valuation report dated 1st November 2024 was furnished to the 1st Defendant.
k. from the above, it is clearly evident that the Applicant and the director of the 3rd Defendant were properly served with the Statutory Notices as required under the law and therefore the Applicant cannot feign ignorance to this Honourable Court at this juncture.
l. consequently, it is clear there was no violation of the law by the 1st Defendant in exercising its statutory power of sale which may compel this Honourable Court to issue an injunction.
m. moreover, any land given as security becomes a commodity for sale and its sale is compensable by damages, if any fault is found after the sale has been carried out.
n. the Applicant herein will not suffer any loss and/or prejudice as contemplated, for the Applicant understood the consequences of the 3rd Defendant dishonouring its obligations towards the 1st Defendant, which was the 1st Defendant exercising its statutory power of sale over the charged property.
o. for the above reasons, the Applicants herein have not satisfied the test for issuance of an injunction as contemplated in the famous case of Giella v Cassman Brown and therefore the Application dated 18th November 2024 is frivolous, vexatious, unjustified and bad in law and ought to be dismissed with costs.
4. Directions were given for the application to be heard through written submissions. The Applicant’s submissions are dated 10th February 2025 while the 1st Defendant/Respondent’s submissions are dated 16th June 2025.
5. The 2nd and 3rd Defendants/Respondents did not participate in the application.
Analysis and Determination
6. I have carefully considered the instant application, the Replying affidavit, the rival submissions by parties and the authorities cited. The two issues I form for determination is whether the statutory notices were issued in accordance with the law and whether the Applicant has satisfied the conditions for grant of injunction orders sough herein
(i) Whether the statutory notices were issued in accordance with the law
7. The Plaintiff/Applicant avers that she was never served with Statutory Notice under Sec 90 of the Land Act, neither was she served with Notice to Sell under Sec 96(2) of the Land Act.
8. On the other hand, the 1st Defendant/Respondent in their replying affidavit sworn by Jackson Mugo avers that statutory notices and notice to sell were served upon the Plaintiff/Applicant through registered post.
9. Section 90 of the Land Act states;
(1) If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be in default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.
(2) The notice required by subsection (1) shall adequately inform the recipient of the following matters—
a)the nature and extent of the default by the chargor;
b)if the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed;
c)if the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so as to rectify the default and the time, being not less than two months, by the end of which the default must have been rectified;
d)the consequence that if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of the remedies referred to in this section in accordance with the procedures provided for in this sub-part; and the right of the chargor in respect of certain remedies to apply to the court for relief against those remedies.
10. Section 92(2) of the Land Act states;
“Before exercising the power to sell the charged land, the chargee shall serve on the chargor a notice to sell in the prescribed form and shall not proceed to complete any contract for the sale of the charged land until at least forty days have elapsed from the date of the service of that notice to sell”. (Emphasis supplied)
11. Since the Applicant denies service of the notice by the 1st Defendant/Respondent, the burden is on the 1st Respondent to show that it complied with the law by serving it. In Nyagilo Ochieng & another v Fanuel Ochieng & 2 others [1995-1998] 2 EA 260, the court held that the burden to show that the statutory notice has been served does not in any way rest on the chargor. Once the chargor alleges non-receipt of the statutory notice, it is for the chargee to prove that such notice was in fact served.
12. However, section 90 of the Land Act must be given a purposive approach. In the case of First Choice Mega Store Limited v Ecobank Kenya Limited [2017] eKLR, the court held:
“…the general purpose of a notice to a chargor under section 90 is majorly to protect the chargor. The law regulates the contractual relationship between the parties by ensuring that the purpose of a charge is not defeated. The purpose is mainly for the property to act as security and no more. The chargor must have the chance, nay right, to redeem the property. In the absence of a notice it would be much easier for unscrupulous chargees to rid the chargor of the equity of redemption. The borrower who pledges and charges his property must be confident that the property will be held as security and when the lender must then act and start the process of selling the same, the borrower will have both notification of such action and an opportunity to redeem his property.”
13. In Cieni Plains Company Limited & 2 others v Ecobank Kenya Limited[2017] eKLR, the court held:
“Thus, even though section 90 appears couched in mandatory terms, its object and purpose can never be ignored. Where there is substantial compliance with the section, enough to put the chargor on notice of the chargee’s ultimate intentions if the notice is not heeded, then such substantial compliance will be deemed to have countenanced any alleged deviation, especially at an interlocutory stage. This is however not to suggest that even where there is patent non-compliance, the court will ignore that fact. Every case ought to be considered on its own merits and unique circumstances …” (Emphasis added).
14. I have perused the notices that are purported to have been served upon the Applicant and the registered postal packets. Of much concern to me is the copy of List of Registered postal packets (Annexure JM-4 to the Replying affidavit). The same as it appears does not reflect whether the disputed notices herein were in deed served. It is my considered view that this will have to call for more verification and clarification through evidence at trial.
(ii) Whether the Applicant has satisfied the conditions upon which a temporary injunction can be granted
15. The Application is brought under Order 40 rules 1- 4. Order 40 rule 1 allows the court to allow injunctions in cases where suit property is at risk. Order 40
(1) (a) and (b) provides:
"Where in any suit it is proved by affidavit or otherwise—
(a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree;
(b) That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further."
16. The conditions for consideration in granting an injunction are well settled and the celebrated case of Giella vs Cassman Brown & Company Limited (1973) E A 358, where the court expressed itself on the condition’s that a party must satisfy for the court to grant an interlocutory injunction:-
"First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience."
17. These conditions for the award of injunctions were buttressed in American Cyanamid Co. vs Ethicom Limited (1975) A AER 504, which was quoted with approval in Stanley Anyamba Ageyo & another v Musa Matu Riunga & 5 others [2022] eKLR, where three conditions were noted to be of great importance namely:
i. There must be a serious/fair issue to be tried (Prima facie case),
ii. Damages are not an adequate remedy,
iii. The balance of convenience lies in favour of granting or refusing the application.
18. The Plaintiff/Applicant submits that the suit property is in danger of being alienated as the 1st and 2nd Defendants have already advertised the property for sale vide public auction. The Plaintiff/ Applicant is aggrieved since she was never served with the requisite statutory notices to enable her regularize accounts and exercise her equitable right of redemption. The 1st Defendant/Respondent’s Replying Affidavit sworn by Jackson Mugo confirms that indeed the 2nd and 1st had commenced sale vide public auction through a newspaper advert and that the sale was to take place on 27/11/2024.
i) Whether the Plaintiff/Applicant has established a prima facie case with a probability of success?
19. The Plaintiff/Applicant is the absolute registered owner of land parcel number LR MACHAKOS TOWN BLOCK 3/905. A legal charge was registered over the said property in favour of the 1st Defendant/Respondent to guarantee a loan facility which had been advanced to the 3rd Defendant/Respondent. Which personal guarantee was for 19,500,000/=.
20. However, the 3rd Defendant/Respondent is said to have defaulted in repaying the said loan and it subsequently fell in arrears.
21. The 2nd Defendant/Respondent acting on the instructions of the 1st Defendant/Respondent advertised the suit property for sale and transfer vide public auction which was scheduled on the 27/11/2024. The Plaintiff/Applicant maintains that she was not served with statutory notice that complies with the requirements of Sec 90 (1) of the Land Act. The 1st Defendant/Respondent also failed to serve the Plaintiff/Applicant with notice to sell as required under Sec 96(2) the Land Act. The Plaintiff/Applicant only learned of the intended public auction from the newspaper advert through a neighbour who brought it to her attention.
22. On the other hand, the 1st Defendant/Respondent alleges that statutory notices were served upon the Plaintiff/Applicant through registered mail.
23. In Mrao Ltd vs Ltd vs First American Bank of Kenya and 2 others, (2003) KLR 125 which was cited with approval in Moses C. Muhia Njoroge & 2 others vs Jane W Lesaloi and 5 others, (2014) eKLR, the Court of Appeal defined a prima facie case as:
"A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later”.
24. The parties herein have a dispute as to whether the Plaintiff/Applicant herein was served with statutory notice or not. The 1st Defendant/Respondent has not produced any document to show that it served the Plaintiff/Applicant with statutory notice in compliance with Sec 90 of the Land Act. There is also no proof that notice to sell was served upon the Plaintiff/Applicant in accordance with Sec 96 (2) of the Land Act.
25. The 1st Defendant/Respondent only attached postage receipts dated 18/9/2024 to show that the Plaintiff/Applicant herein and the 3rd Defendant/Respondent were served with 45 days’ Notice of redemption dated 17/9/2024. These can be found attached to the 1st Defendant/Respondent’s Replying Affidavit as Annexture ‘JM8’.
As already observed, the copy of List of Registered postal packets (Annexure JM-4 to the Replying affidavit) does not reflect whether the disputed notices herein were in deed served. It is my considered view that the 1st Respondent ought to have effected proper service of notice under Section 96 (2) of the Land Act before the 1st Defendant/Respondent could initiate recovery proceedings through the 2nd Defendant/Respondent. This was the view of the court in David Ngugi Ngaari v Kenya Commercial Bank Limited [2015] KEHC 4064 (KLR) where the court held;
“The notice under section 96(2) of the Land Act is mandatory, precedes and is quite apart from the Redemption Notice issued under rule 15 of the Auctioneers Act”.
26. It is a well-established principle that he who asserts must proof, and the 1st Defendant/Respondent has failed to proof service of both the 90 days statutory Notice as well as notice to sell upon the Plaintiff/Applicant, which raises a serious issue that can only be determined in a full hearing of the suit on merit. I therefore find that the Plaintiff/Applicant has demonstrated that she has a prima facie case with probability of success.
ii) Whether the plaintiff will suffer irreparable injury/loss that cannot be compensated by an award of damages if the application for temporary injunction is not allowed?
27. The Plaintiff/Applicant stands to suffer in her capacity as guarantor if the forced sale proceeds. This is because as submitted by the Applicant, the suit property sought to be sold hosts the family home and its irregular and illegal sale would render the family homeless.
28. The foregoing clearly shows that unless the 1st and 2nd Defendant/Respondent are restrained, the forced sale of the suit property vide public auction will occasion the Plaintiff/Applicant irreparable damage as land is not the same everywhere, and the Plaintiff/Applicant’s matrimonial home holds sentimental value and memories.
ii) In whose favour does the balance of convenience lie?
29. The High court in Paul Gitonga Wanjau vs. Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR, exposed the balance of convenience as follows:
"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... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies. "
30. The Plaintiff/Applicant contends that she was never served with the requisite notices under the Land Act by the 1st Defendant/Respondent and that she learnt that the property had been advertised for sale when a neighbour informed her of the newspaper advert by the 2nd Defendant/Respondent. Further, the Plaintiff/Applicant was merely a guarantor and the liability to service the loan cannot be shifted from the 3rd Defendant/Respondent to the Plaintiff/Applicant. The 1st Defendant/Respondent ought to have exhausted recovery proceedings against the 3rd Defendant/Respondent before resulting to recover the loan from the Plaintiff/Applicant.
31. In addition, the Plaintiff/Applicant is in possession of the suit property where she resides and spends most of her time with her family.
32. In Lilian Mercy Mutua T/A Lilian M. Gems V Elizabeth Wangechi Olonginda & 3 Others Civil Case 36 of 2013 [2013] eKLR the court stated,
‘The status quo is that the applicant has occupation of the disputed land and is in actual occupation of the mine. Truly the balance of convenience favours the applicant.’
33. On the whole, I find that the Plaintiff/Applicant therefore stands to suffer great loss if the temporary injunction order is not allowed, and damages would not occasion her adequate compensation.
34. In Elizabeth Wambui Njuguna -Vs- Housing Finance Co. of Kenya Ltd [2006] eKLR which was quoted with approval in Andrew Karani Ireri & another v Nic Bank Ltd [2016] eKLR the court held that:-
‘…the omission to serve a valid statutory notice is not an irregularity or impropriety to be remedied in damages. It is a fundamental breach of the statute, which derogates from the chargor’s equity of redemption.
35. On the other hand, the 1st Defendant/Respondent will suffer no harm if the Application for injunction is allowed. In the event the main suit is dismissed, the 1st Defendant/Respondent will be liberty to exercise its power of sale. The delay caused by proceeding for main hearing can easily be compensated fiscally by way of interest on the principal sum advanced as loan to the 3rd Defendant/Respondent as well as costs. In addition, the suit property is a developed parcel of and which continues to appreciate in value.
36. The court in Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & Dalali Traders [2019] KEHC 10298 (KLR) stated;
“The 1st Respondent on the other hand will suffer no harm if the injunction is granted, as in the event that it is successful in the main suit, and as it still has the Applicant’s security, (the suit property), it will be at liberty to exercise its statutory power of sale. The security being land, it is not likely to lose its value but will appreciate in value. It will therefore lawfully sale the property and deprive the Plaintiff/Applicant of the suit property.
37. The upshot is that the Plaintiff/Applicant has demonstrated that the 1st Defendant/Respondent’s attempt at recovery proceedings through the 2nd
Defendant/Respondent is defective for want of service of statutory notice under Sec 90(1) and notice of sale under Sec 96(2) of the Land Act. The Plaintiff/Applicant will suffer irreparable harm in the event the application is not allowed, hence the balance of convenience tilts in favour of the Plaintiff/Applicant.
38. Accordingly, this court will issue an interim injunction restraining the Defendants herein from offering for sale, selling, taking possession of or in any way disposing off the whole of land parcel LR NO. Machakos town Block 3/905 pending the hearing and determination of the main suit herein.
39. Costs shall be in the cause.
40. Directions to be taken on the hearing of the main suit.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 25TH NOVEMBER 2025
NOEL ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 25TH NOVEMBER 2025
In the presence of :-
Ms. Mutisya................ for Applicants
Ms. Wairimu.............. for Respondent
MillyGrace.......... Court Assistant
'
IN THE HIGHCOURT OF KENYA AT MACHAKOS
CASE NO. HCCC E029 OF 2024
AGNES NDUNGE MUTISYA …………….………………PLAINTIFF/APPLICANT
VERSUS
EQUITY BANK KENYA LTD …………...…… 1ST DEFENDANT/RESPONDENT
ANTIQUE AUCTIONS AGENCIES …………. 2ND DEFENDANT/RESPONDENT
SUN GLAM HOTEL LTD …………..…….….. 3RD DEFENDANT/RESPONDENT
RULING
Introduction
1. The Plaintiff/ Applicant filed the Notice of Motion application dated 18/11/2024 seeking orders of an interim injunction restraining the Defendant herein from offering for sale, selling, taking possession of or in any way disposing off the whole of land parcel LR NO. Machakos town Block 3/905 pending the hearing and determination of the main suit. The Application is supported by supporting affidavit sworn by the Plaintiff/Applicant herein on 18th November 2024.
2. The application is premised on the following grounds:-
a The Plaintiff/Applicant is the absolute registered owner of land parcel number LR NO. MACHAKSO TOWN BLOCK 3/905.
b The 2nd Defendant/ Respondent has advertised the suit property for sale and transfer vide public auction for recovery monies advanced to the 3rd Defendant/Applicant in whose favour Plaintiff/Applicant acted as a guarantor.
c The intended sale is a nullity as the Respondents failed to follow the laid down procedural law as required under the Land Act as no statutory notice of sale was issued to the plaintiff pursuant to section 96(2) of the Land Act, 2012. The respondents also failed to issue the Plaintiff with a proper statutory notice that complies with section 90(1) of the Land Act.
d The Defendants failed to conduct a forced valuation of the property has been carried out in accordance to Sec 97 of the Land Act.
e That the 1st Defendant/Respondent has not exhausted all avenues to recover the loan facility advanced to the 3rd Defendant/ Respondent and the Plaintiff/Applicant stands to suffer in her capacity as a guarantor is the forced sale is allowed to proceed without proper notice to herself.
f The plaintiff has a prima facie case within probability of success and the plaintiff/Applicant stands to suffer irreparable loss and damages unless an order of injunction is issued.
3. The application is opposed by the 1st Defendant/Applicant through a Replying
affidavit sworn by Jackson Mugo on 27/1/2024. The 1st Defendant/Respondents contends that:-
a indeed, on 7th December 2022, the 1st Defendant advanced a secured business loan facility to the 3rd Defendant herein amounting to Kshs.16,000,000/ = for purposes of purchase, installation and commissioning of passenger lift plus lift support structure with all controls and safety gear and loans payoff.
b the business loan facility advanced to the 3rd Defendant herein was to be repaid within a period of 48 months as per a copy of the Letter of Offer dated 7th December 2022.
c. furthermore, the business loan facility was secured by a personal guarantee by one William Mutisya Mbaluto, a director of the 3rd Defendant, and the Applicant herein, a guarantee that was further supported by registration of a legal charge of Kshs.19,500,000/= over her property TITLE NUMBER MACHAKOS TOWN BLOCK 3/905 in favour of the 1st Defendant herein as per the copies of the CR12 and Deeds of Guarantee executed by the Applicant and William Mutisya Mbaluto all dated 29th December 2021.
d. the 3rd Defendant herein failed to honour its obligations in making the monthly payments as required which caused the 1st Defendant to issue a statutory notice dated 17th November 2023.
e. the said Statutory Notice issued pursuant to Section 90 of the Land Act, 2012, Laws of Kenya was issued to the Plaintiff/ Applicant and the director of the 3rd Defendant herein, who were duly served vide all their provided registered post office box numbers.
f. upon expiry of the 90 days, on 11th April 2024, the 1st Defendant then issued to the Applicant and the director of the 3rd Defendant herein with a Statutory Notice to Sell issued under Section 96 (2) of the Land Act as per the copies of the Statutory Notice to Sell and the List of Registered packets demonstrating service.
g. the issuance of the Statutory Notices to the Applicant and the 3rd Defendant herein prompted the 3rd Defendant to make a payment proposal to the 1st Defendant through a letter dated 13th June 2024 but which was never honoured by the 3rd Defendant
h. due to the failure of the 3rd Defendant and/or Applicant in honouring their obligations, the 1st Defendant then proceeded to instruct the 2nd Defendant herein to proceed with the statutorily provided process of auction.
i. on various dates of 17th September 2024 and 18th September 2024, the 2nd Defendant then proceeded to serve the Applicant and the director of the 3rd Defendant herein with the 45 days redemption notice as required under the law as per the copy of the Redemption notice dated 17th September 2024, Payment receipts for postage and the Certificate of Service dated 23rd September 2024.
j. additionally, on 30th October 2024, the 1st Defendant instructed Transcountry Valuers Ltd to undertake valuation of the charged property, which was duly undertaken and a valuation report dated 1st November 2024 was furnished to the 1st Defendant.
k. from the above, it is clearly evident that the Applicant and the director of the 3rd Defendant were properly served with the Statutory Notices as required under the law and therefore the Applicant cannot feign ignorance to this Honourable Court at this juncture.
l. consequently, it is clear there was no violation of the law by the 1st Defendant in exercising its statutory power of sale which may compel this Honourable Court to issue an injunction.
m. moreover, any land given as security becomes a commodity for sale and its sale is compensable by damages, if any fault is found after the sale has been carried out.
n. the Applicant herein will not suffer any loss and/or prejudice as contemplated, for the Applicant understood the consequences of the 3rd Defendant dishonouring its obligations towards the 1st Defendant, which was the 1st Defendant exercising its statutory power of sale over the charged property.
o. for the above reasons, the Applicants herein have not satisfied the test for issuance of an injunction as contemplated in the famous case of Giella v Cassman Brown and therefore the Application dated 18th November 2024 is frivolous, vexatious, unjustified and bad in law and ought to be dismissed with costs.
4. Directions were given for the application to be heard through written submissions. The Applicant’s submissions are dated 10th February 2025 while the 1st Defendant/Respondent’s submissions are dated 16th June 2025.
5. The 2nd and 3rd Defendants/Respondents did not participate in the application.
Analysis and Determination
6. I have carefully considered the instant application, the Replying affidavit, the rival submissions by parties and the authorities cited. The two issues I form for determination is whether the statutory notices were issued in accordance with the law and whether the Applicant has satisfied the conditions for grant of injunction orders sough herein
(i) Whether the statutory notices were issued in accordance with the law
7. The Plaintiff/Applicant avers that she was never served with Statutory Notice under Sec 90 of the Land Act, neither was she served with Notice to Sell under Sec 96(2) of the Land Act.
8. On the other hand, the 1st Defendant/Respondent in their replying affidavit sworn by Jackson Mugo avers that statutory notices and notice to sell were served upon the Plaintiff/Applicant through registered post.
9. Section 90 of the Land Act states;
(1) If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be in default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.
(2) The notice required by subsection (1) shall adequately inform the recipient of the following matters—
a)the nature and extent of the default by the chargor;
b)if the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed;
c)if the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so as to rectify the default and the time, being not less than two months, by the end of which the default must have been rectified;
d)the consequence that if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of the remedies referred to in this section in accordance with the procedures provided for in this sub-part; and the right of the chargor in respect of certain remedies to apply to the court for relief against those remedies.
10. Section 92(2) of the Land Act states;
“Before exercising the power to sell the charged land, the chargee shall serve on the chargor a notice to sell in the prescribed form and shall not proceed to complete any contract for the sale of the charged land until at least forty days have elapsed from the date of the service of that notice to sell”. (Emphasis supplied)
11. Since the Applicant denies service of the notice by the 1st Defendant/Respondent, the burden is on the 1st Respondent to show that it complied with the law by serving it. In Nyagilo Ochieng & another v Fanuel Ochieng & 2 others [1995-1998] 2 EA 260, the court held that the burden to show that the statutory notice has been served does not in any way rest on the chargor. Once the chargor alleges non-receipt of the statutory notice, it is for the chargee to prove that such notice was in fact served.
12. However, section 90 of the Land Act must be given a purposive approach. In the case of First Choice Mega Store Limited v Ecobank Kenya Limited [2017] eKLR, the court held:
“…the general purpose of a notice to a chargor under section 90 is majorly to protect the chargor. The law regulates the contractual relationship between the parties by ensuring that the purpose of a charge is not defeated. The purpose is mainly for the property to act as security and no more. The chargor must have the chance, nay right, to redeem the property. In the absence of a notice it would be much easier for unscrupulous chargees to rid the chargor of the equity of redemption. The borrower who pledges and charges his property must be confident that the property will be held as security and when the lender must then act and start the process of selling the same, the borrower will have both notification of such action and an opportunity to redeem his property.”
13. In Cieni Plains Company Limited & 2 others v Ecobank Kenya Limited[2017] eKLR, the court held:
“Thus, even though section 90 appears couched in mandatory terms, its object and purpose can never be ignored. Where there is substantial compliance with the section, enough to put the chargor on notice of the chargee’s ultimate intentions if the notice is not heeded, then such substantial compliance will be deemed to have countenanced any alleged deviation, especially at an interlocutory stage. This is however not to suggest that even where there is patent non-compliance, the court will ignore that fact. Every case ought to be considered on its own merits and unique circumstances …” (Emphasis added).
14. I have perused the notices that are purported to have been served upon the Applicant and the registered postal packets. Of much concern to me is the copy of List of Registered postal packets (Annexure JM-4 to the Replying affidavit). The same as it appears does not reflect whether the disputed notices herein were in deed served. It is my considered view that this will have to call for more verification and clarification through evidence at trial.
(ii) Whether the Applicant has satisfied the conditions upon which a temporary injunction can be granted
15. The Application is brought under Order 40 rules 1- 4. Order 40 rule 1 allows the court to allow injunctions in cases where suit property is at risk. Order 40
(1) (a) and (b) provides:
"Where in any suit it is proved by affidavit or otherwise—
(a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree;
(b) That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further."
16. The conditions for consideration in granting an injunction are well settled and the celebrated case of Giella vs Cassman Brown & Company Limited (1973) E A 358, where the court expressed itself on the condition’s that a party must satisfy for the court to grant an interlocutory injunction:-
"First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience."
17. These conditions for the award of injunctions were buttressed in American Cyanamid Co. vs Ethicom Limited (1975) A AER 504, which was quoted with approval in Stanley Anyamba Ageyo & another v Musa Matu Riunga & 5 others [2022] eKLR, where three conditions were noted to be of great importance namely:
i. There must be a serious/fair issue to be tried (Prima facie case),
ii. Damages are not an adequate remedy,
iii. The balance of convenience lies in favour of granting or refusing the application.
18. The Plaintiff/Applicant submits that the suit property is in danger of being alienated as the 1st and 2nd Defendants have already advertised the property for sale vide public auction. The Plaintiff/ Applicant is aggrieved since she was never served with the requisite statutory notices to enable her regularize accounts and exercise her equitable right of redemption. The 1st Defendant/Respondent’s Replying Affidavit sworn by Jackson Mugo confirms that indeed the 2nd and 1st had commenced sale vide public auction through a newspaper advert and that the sale was to take place on 27/11/2024.
i) Whether the Plaintiff/Applicant has established a prima facie case with a probability of success?
19. The Plaintiff/Applicant is the absolute registered owner of land parcel number LR MACHAKOS TOWN BLOCK 3/905. A legal charge was registered over the said property in favour of the 1st Defendant/Respondent to guarantee a loan facility which had been advanced to the 3rd Defendant/Respondent. Which personal guarantee was for 19,500,000/=.
20. However, the 3rd Defendant/Respondent is said to have defaulted in repaying the said loan and it subsequently fell in arrears.
21. The 2nd Defendant/Respondent acting on the instructions of the 1st Defendant/Respondent advertised the suit property for sale and transfer vide public auction which was scheduled on the 27/11/2024. The Plaintiff/Applicant maintains that she was not served with statutory notice that complies with the requirements of Sec 90 (1) of the Land Act. The 1st Defendant/Respondent also failed to serve the Plaintiff/Applicant with notice to sell as required under Sec 96(2) the Land Act. The Plaintiff/Applicant only learned of the intended public auction from the newspaper advert through a neighbour who brought it to her attention.
22. On the other hand, the 1st Defendant/Respondent alleges that statutory notices were served upon the Plaintiff/Applicant through registered mail.
23. In Mrao Ltd vs Ltd vs First American Bank of Kenya and 2 others, (2003) KLR 125 which was cited with approval in Moses C. Muhia Njoroge & 2 others vs Jane W Lesaloi and 5 others, (2014) eKLR, the Court of Appeal defined a prima facie case as:
"A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later”.
24. The parties herein have a dispute as to whether the Plaintiff/Applicant herein was served with statutory notice or not. The 1st Defendant/Respondent has not produced any document to show that it served the Plaintiff/Applicant with statutory notice in compliance with Sec 90 of the Land Act. There is also no proof that notice to sell was served upon the Plaintiff/Applicant in accordance with Sec 96 (2) of the Land Act.
25. The 1st Defendant/Respondent only attached postage receipts dated 18/9/2024 to show that the Plaintiff/Applicant herein and the 3rd Defendant/Respondent were served with 45 days’ Notice of redemption dated 17/9/2024. These can be found attached to the 1st Defendant/Respondent’s Replying Affidavit as Annexture ‘JM8’.
As already observed, the copy of List of Registered postal packets (Annexure JM-4 to the Replying affidavit) does not reflect whether the disputed notices herein were in deed served. It is my considered view that the 1st Respondent ought to have effected proper service of notice under Section 96 (2) of the Land Act before the 1st Defendant/Respondent could initiate recovery proceedings through the 2nd Defendant/Respondent. This was the view of the court in David Ngugi Ngaari v Kenya Commercial Bank Limited [2015] KEHC 4064 (KLR) where the court held;
“The notice under section 96(2) of the Land Act is mandatory, precedes and is quite apart from the Redemption Notice issued under rule 15 of the Auctioneers Act”.
26. It is a well-established principle that he who asserts must proof, and the 1st Defendant/Respondent has failed to proof service of both the 90 days statutory Notice as well as notice to sell upon the Plaintiff/Applicant, which raises a serious issue that can only be determined in a full hearing of the suit on merit. I therefore find that the Plaintiff/Applicant has demonstrated that she has a prima facie case with probability of success.
ii) Whether the plaintiff will suffer irreparable injury/loss that cannot be compensated by an award of damages if the application for temporary injunction is not allowed?
27. The Plaintiff/Applicant stands to suffer in her capacity as guarantor if the forced sale proceeds. This is because as submitted by the Applicant, the suit property sought to be sold hosts the family home and its irregular and illegal sale would render the family homeless.
28. The foregoing clearly shows that unless the 1st and 2nd Defendant/Respondent are restrained, the forced sale of the suit property vide public auction will occasion the Plaintiff/Applicant irreparable damage as land is not the same everywhere, and the Plaintiff/Applicant’s matrimonial home holds sentimental value and memories.
ii) In whose favour does the balance of convenience lie?
29. The High court in Paul Gitonga Wanjau vs. Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR, exposed the balance of convenience as follows:
"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... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies. "
30. The Plaintiff/Applicant contends that she was never served with the requisite notices under the Land Act by the 1st Defendant/Respondent and that she learnt that the property had been advertised for sale when a neighbour informed her of the newspaper advert by the 2nd Defendant/Respondent. Further, the Plaintiff/Applicant was merely a guarantor and the liability to service the loan cannot be shifted from the 3rd Defendant/Respondent to the Plaintiff/Applicant. The 1st Defendant/Respondent ought to have exhausted recovery proceedings against the 3rd Defendant/Respondent before resulting to recover the loan from the Plaintiff/Applicant.
31. In addition, the Plaintiff/Applicant is in possession of the suit property where she resides and spends most of her time with her family.
32. In Lilian Mercy Mutua T/A Lilian M. Gems V Elizabeth Wangechi Olonginda & 3 Others Civil Case 36 of 2013 [2013] eKLR the court stated,
‘The status quo is that the applicant has occupation of the disputed land and is in actual occupation of the mine. Truly the balance of convenience favours the applicant.’
33. On the whole, I find that the Plaintiff/Applicant therefore stands to suffer great loss if the temporary injunction order is not allowed, and damages would not occasion her adequate compensation.
34. In Elizabeth Wambui Njuguna -Vs- Housing Finance Co. of Kenya Ltd [2006] eKLR which was quoted with approval in Andrew Karani Ireri & another v Nic Bank Ltd [2016] eKLR the court held that:-
‘…the omission to serve a valid statutory notice is not an irregularity or impropriety to be remedied in damages. It is a fundamental breach of the statute, which derogates from the chargor’s equity of redemption.
35. On the other hand, the 1st Defendant/Respondent will suffer no harm if the Application for injunction is allowed. In the event the main suit is dismissed, the 1st Defendant/Respondent will be liberty to exercise its power of sale. The delay caused by proceeding for main hearing can easily be compensated fiscally by way of interest on the principal sum advanced as loan to the 3rd Defendant/Respondent as well as costs. In addition, the suit property is a developed parcel of and which continues to appreciate in value.
36. The court in Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & Dalali Traders [2019] KEHC 10298 (KLR) stated;
“The 1st Respondent on the other hand will suffer no harm if the injunction is granted, as in the event that it is successful in the main suit, and as it still has the Applicant’s security, (the suit property), it will be at liberty to exercise its statutory power of sale. The security being land, it is not likely to lose its value but will appreciate in value. It will therefore lawfully sale the property and deprive the Plaintiff/Applicant of the suit property.
37. The upshot is that the Plaintiff/Applicant has demonstrated that the 1st Defendant/Respondent’s attempt at recovery proceedings through the 2nd
Defendant/Respondent is defective for want of service of statutory notice under Sec 90(1) and notice of sale under Sec 96(2) of the Land Act. The Plaintiff/Applicant will suffer irreparable harm in the event the application is not allowed, hence the balance of convenience tilts in favour of the Plaintiff/Applicant.
38. Accordingly, this court will issue an interim injunction restraining the Defendants herein from offering for sale, selling, taking possession of or in any way disposing off the whole of land parcel LR NO. Machakos town Block 3/905 pending the hearing and determination of the main suit herein.
39. Costs shall be in the cause.
40. Directions to be taken on the hearing of the main suit.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 25TH NOVEMBER 2025
NOEL ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 25TH NOVEMBER 2025
In the presence of :-
Ms. Mutisya................ for Applicants
Ms. Wairimu.............. for Respondent
MillyGrace.......... Court Assistant
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