1. Vide an application dated 27th January 2026, the Plaintiffs sought orders of a temporary injunction restraining the Defendants from auctioning the parcels of land known as L.R. MN/I/19128, MN/I/21559 and MN/I/22289 measuring 0.0332, 0.0951 and 0.0517 hectares respectively, pending the hearing and determination of the main suit.
2. The application was based on twelve (12) grounds reiterated in the supporting affidavit sworn by Linet Awino Awuor Maende on 27th January 2026. The Plaintiffs stated that they obtained financial facilities from the 1st Defendant for purposes of expanding their businesses and charged the said properties as security. They serviced the loans in accordance with the offer letters until July 2023 when they defaulted.
Following the default, the Defendants issued demand notices and instructed the 2nd Defendant to realize the securities. This prompted the Plaintiffs to file an application dated 17th November 2023, upon which the Court, in a ruling delivered on 26th April 2024, advised the parties to pursue an out-of-court settlement.
Subsequently, the Plaintiffs filed another application dated 29th January 2025, and in a ruling delivered on 31st July 2025, the Court granted injunctive orders for a period of ninety (90) days to enable the Plaintiffs to regularize the loan account.
3. The Plaintiffs further stated that despite ongoing discussions and partial payments, they received notifications of sale scheduling public auctions on 29th January 2026 and 6th February 2026, both of which have since lapsed. They expressed apprehension that the Defendants would proceed with the auction and maintained that they were in a position to substantially reduce the arrears.
4. The 1st Defendant opposed the application through a replying affidavit sworn on 10th February 2026 by Benjamin Nzioka. The Defendant contended that the application is premised on economic hardship, that the matter is res judicata, and that the Plaintiffs failed to comply with the conditions set out in the ruling of 31st July 2025. It was further stated that no payments have been made since the said ruling, demonstrating lack of good faith on the part of the Plaintiffs.
5. The Court has considered the application, the affidavits on record, and the submissions filed. In determining whether to grant the orders sought, the Court is guided by the well-established principles in Giella v Cassman Brown & Co. Ltd. An applicant must establish a prima facie case with a probability of success, demonstrate that they stand to suffer irreparable loss not compensable by damages, and where in doubt, the Court will determine the matter on a balance of convenience.
6. A prima facie case was defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others as a case which discloses a right that has apparently been infringed and calls for rebuttal. In the present case, the Plaintiffs have admitted default in repayment of the loan facility and have failed to demonstrate compliance with the conditions imposed by this Court in its earlier ruling. Consequently, they have not established a prima facie case.
7. On irreparable harm, the suit properties were offered as security for a commercial loan. It is settled law that once property is charged, it becomes a commodity for sale upon default, and any loss occasioned can be adequately compensated by damages. The Plaintiffs have not demonstrated that they would suffer irreparable loss incapable of compensation.
8. On the balance of convenience, the same tilts in favour of the 1st Defendant, who is exercising its statutory power of sale following admitted default. The Plaintiffs were previously granted indulgence by this Court but failed to comply with the conditions attached thereto. Equity does not aid the indolent.
9. Further, in the ruling delivered on 31st July 2025, this Court was unequivocal that the Plaintiffs were to settle the outstanding arrears within ninety (90) days. The 1st Defendant has asserted that no payment has been made since, and the Plaintiffs have not controverted that assertion. The Court therefore deems the same as admitted.
10. The importance of compliance with court orders cannot be overstated. In Republic v Attorney General Ex parte Evanson Gidraph Kamau Waitiki & Another (Mombasa Civil Application No. 40 of 2000) , the Court emphasized that court orders must be obeyed, failing which they remain mere paper directives. Similarly, in Hadkinson v Hadkinson , it was held that parties are under an unqualified obligation to obey court orders unless and until they are set aside.
11. The Court was explicit in Order (b)(ii) of the ruling of 31st July 2025, which provided:
“In default of (i) above, the 1st Respondent is at liberty to proceed with recovery proceedings with no further reference to this Court.”
Order (b)(i) required the Plaintiffs to pay the outstanding arrears within ninety (90) days and to remain compliant with the repayment plan. That order has neither been complied with nor set aside.
12. In the circumstances, the present application is not only res judicata but also an abuse of the court process . The Court therefore declines to consider it further.
13. Accordingly, the application dated 27th January 2026 is hereby dismissed . For avoidance of doubt, any interim orders that may have been in force are hereby vacated .
14. Costs follow the event pursuant to Section 27 of the Civil Procedure Act. The Plaintiffs having been unsuccessful, the Defendants are entitled to costs.
15. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA this 31st day of March, 2026 .
HON. LADY JUSTICE W. K. MICHENI JUDGE
Appearances
Plaintiffs/Applicants: Absent
Defendants/Respondents: Mr. Oluoch holding brief for Mr. Kongere
Maureen- Court Assistant
2. The application was based on twelve (12) grounds reiterated in the supporting affidavit sworn by Linet Awino Awuor Maende on 27th January 2026. The Plaintiffs stated that they obtained financial facilities from the 1st Defendant for purposes of expanding their businesses and charged the said properties as security. They serviced the loans in accordance with the offer letters until July 2023 when they defaulted.
Following the default, the Defendants issued demand notices and instructed the 2nd Defendant to realize the securities. This prompted the Plaintiffs to file an application dated 17th November 2023, upon which the Court, in a ruling delivered on 26th April 2024, advised the parties to pursue an out-of-court settlement.
Subsequently, the Plaintiffs filed another application dated 29th January 2025, and in a ruling delivered on 31st July 2025, the Court granted injunctive orders for a period of ninety (90) days to enable the Plaintiffs to regularize the loan account.
3. The Plaintiffs further stated that despite ongoing discussions and partial payments, they received notifications of sale scheduling public auctions on 29th January 2026 and 6th February 2026, both of which have since lapsed. They expressed apprehension that the Defendants would proceed with the auction and maintained that they were in a position to substantially reduce the arrears.
4. The 1st Defendant opposed the application through a replying affidavit sworn on 10th February 2026 by Benjamin Nzioka. The Defendant contended that the application is premised on economic hardship, that the matter is res judicata, and that the Plaintiffs failed to comply with the conditions set out in the ruling of 31st July 2025. It was further stated that no payments have been made since the said ruling, demonstrating lack of good faith on the part of the Plaintiffs.
5. The Court has considered the application, the affidavits on record, and the submissions filed. In determining whether to grant the orders sought, the Court is guided by the well-established principles in Giella v Cassman Brown & Co. Ltd. An applicant must establish a prima facie case with a probability of success, demonstrate that they stand to suffer irreparable loss not compensable by damages, and where in doubt, the Court will determine the matter on a balance of convenience.
6. A prima facie case was defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others as a case which discloses a right that has apparently been infringed and calls for rebuttal. In the present case, the Plaintiffs have admitted default in repayment of the loan facility and have failed to demonstrate compliance with the conditions imposed by this Court in its earlier ruling. Consequently, they have not established a prima facie case.
7. On irreparable harm, the suit properties were offered as security for a commercial loan. It is settled law that once property is charged, it becomes a commodity for sale upon default, and any loss occasioned can be adequately compensated by damages. The Plaintiffs have not demonstrated that they would suffer irreparable loss incapable of compensation.
8. On the balance of convenience, the same tilts in favour of the 1st Defendant, who is exercising its statutory power of sale following admitted default. The Plaintiffs were previously granted indulgence by this Court but failed to comply with the conditions attached thereto. Equity does not aid the indolent.
9. Further, in the ruling delivered on 31st July 2025, this Court was unequivocal that the Plaintiffs were to settle the outstanding arrears within ninety (90) days. The 1st Defendant has asserted that no payment has been made since, and the Plaintiffs have not controverted that assertion. The Court therefore deems the same as admitted.
10. The importance of compliance with court orders cannot be overstated. In Republic v Attorney General Ex parte Evanson Gidraph Kamau Waitiki & Another (Mombasa Civil Application No. 40 of 2000) , the Court emphasized that court orders must be obeyed, failing which they remain mere paper directives. Similarly, in Hadkinson v Hadkinson , it was held that parties are under an unqualified obligation to obey court orders unless and until they are set aside.
11. The Court was explicit in Order (b)(ii) of the ruling of 31st July 2025, which provided:
“In default of (i) above, the 1st Respondent is at liberty to proceed with recovery proceedings with no further reference to this Court.”
Order (b)(i) required the Plaintiffs to pay the outstanding arrears within ninety (90) days and to remain compliant with the repayment plan. That order has neither been complied with nor set aside.
12. In the circumstances, the present application is not only res judicata but also an abuse of the court process . The Court therefore declines to consider it further.
13. Accordingly, the application dated 27th January 2026 is hereby dismissed . For avoidance of doubt, any interim orders that may have been in force are hereby vacated .
14. Costs follow the event pursuant to Section 27 of the Civil Procedure Act. The Plaintiffs having been unsuccessful, the Defendants are entitled to costs.
15. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA this 31st day of March, 2026 .
HON. LADY JUSTICE W. K. MICHENI JUDGE
Appearances
Plaintiffs/Applicants: Absent
Defendants/Respondents: Mr. Oluoch holding brief for Mr. Kongere
Maureen- Court Assistant