Vide the Notice of Motion dated 7th November 2025, the plaintiffs herein sought for an order of temporary injunction restraining the 3rd and 4th defendants/respondents either by themselves, nominated agents, servants and or anyone claiming and/or acting under the said 3rd and 4th defendants/respondents from exercising the Statutory Power of Sale over and in respect of LR NO. NORTH MARAGOLI/LYADUYIA/2143 (herein after referred to as the suit property) and in particular advertising for sale, selling vide public auction and/or private treaty, disposing of, transferring, leasing, alienating clogging and/or in any other manner interfering with the plaintiffs’/applicants’ rights and/or interests therein whatsoever and/or howsoever, pending the hearing and determination of the instant suit.
The applicants also sought for an order of the maintenance of the status quo and in particular preserving and/or conserving L.R NO. NORTH MARAGOLI/LYADUYWA/2143 and barring and/or prohibiting the 3rd and 4th defendants/respondents and/or nominated agents from advertising for sale, selling by public auction or private treaty, disposing of, transferring., leasing, alienating, clogging and/or in any other manner interfering with the plaintiffs’/applicants’ rights and/or interests therein whatsoever and howsoever, pending the hearing and determination of the instant suit.
The applicants also sought for an order that costs of the application be borne by the defendants/respondents.
The grounds upon which the application was brought were that the 1st defendant is the registered owner of the suit land.
That the 1st plaintiff and the 1st defendant are husband and wife while the 2nd defendant who is their son is the husband of the 2nd plaintiff and that all of them have their homes on the suit land.
That the 1st plaintiff and the 1st defendant have developed the suit land with several rental units and a three-storey building for purposes of earning a livelihood together with their children.
That in the month of September 2025 the 4th defendant/respondent purported to serve the 1st defendant/respondent with a Notification of Sale of Immovable Property. That Redemption Notice of 40 days pursuant to Section 96(2) of the Land Act was not issued and that no valuation was conducted by the 4th defendant.
That the 2nd plaintiff has overriding interest in respect of the suit property by virtue of being settled on the suit property by the 2nd defendant who is a son of the 1st plaintiff as the suit property is being held in trust for and on behalf of the entire family of the 1st defendant which family members have settled on the suit land.
That pursuant to the notification of sale, the 3rd defendant is intent on exercising Statutory Power of Sale. That the intended sale is illegal misconceived and void.
That the intended actions of the defendants are fraudulent, irregular and illegal. That the plaintiffs have a prima facie case against the defendant and that the plaintiffs are disposed to suffer irreparable loss. That the balance of convenience tilts in favour of the plaintiffs/applicants.
The application was supported by the averments in the Supporting Affidavit sworn by Beatrice Adisa Idagwa on 7th November 2025 and the annextures thereto.
The application was opposed by the 3rd respondent vide the averments in the Replying Affidavit sworn by Moses Anyangu on 3rd December 2025. It was the case of the 3rd respondent that the suit and the application are frivolous, vexatious and an abuse if the due process of the court. That the 2nd plaintiff has no capacity to sue and no cause of action against the defendant as she is not a spouse of the registered proprietor of the suit land. That the 1st applicant granted a spousal consent for the charging of the suit property as can be evidence by the charge. That she also executed the credit application and agreement form before the loan was disbursed to the 1st and 2nd defendants. That the 1st applicant is the one who was served with the notification by PAVE AUCTIONEERS in the first attempt to realise the charge property. That the suit has been filed by the applicants in collusion with the 1st and 2nd respondents to frustrate the 3rd respondent from realising the charged property. That the 1st and 2nd respondents have been stopping attempts to sale the property. That the 1st respondent obtained orders through VIHIGA PMCC ELC NO, 134 of 2018 to stop Pave Auctioneers from realising the property. That later the 1st respondent consented to pay Kshs 25,000/= with effect from 5th April 2019 and on each of the succeeding month until payment in full which he defaulted. That the 1st and 2nd respondents filed VIHIGA HCC No. E001 of 2021 and obtained orders to stop another sale.
That the plaintiffs herein are but proxies of the 1st and 2nd defendants in the quest to stop the realization of the charged property. That the case is an abuse of the process of the court.
The 1st plaintiff filed a Supplementary Affidavit sworn on 15th December 2025 denying the contents of the Replying Affidavit. She deposed that the signature on the affidavit sworn on 11th January 2016 is not hers, that the same is forged. The 1st plaintiff also denied appearing before the 3rd respondent’s advocates for purposes of executing any documents. She averred that they only came to learn of the credit facility advanced to the 1st respondent in September 2025. The 1st plaintiff further denied the claim that she has colluded with the 1st and 2nd respondent to defeat the 3rd respondent’s bid to realize the charged property.
The application was heard by way of written submissions. On behalf of the applicant, written submissions dated 15th December 2025 were filed by Oguttu Mboya, Ochwal & Partners Advocates, while written submissions dated 12th January 2026 were filed by M. Kiveu Advocates on behalf of the 3rd respondent.
The 1st respondent filed a Replying Affidavit sworn on 22nd January 2026 alleging that he has repaid the loan through the 2nd respondent. That he had used the suit land to secure the loan without his wife’s knowledge. That he has his matrimonial house and some rental units on the suit land.
The 2nd and 4th respondents filed no response to the application.
The substantive prayer sought in the application is for an order of temporary injunction.
The grounds for grant of an order of temporary injunction were set out in the case of Giella vs Cassman Brown Co. Ltd (1973) 358 that the Applicant must establish a prima facie case with a probability of success, an interlocutory injunction will not normally be granted unless the Applicant would suffer irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the application on a balance of convenience.
A prima facie case was defined by the Court of Appeal in Mrao Ltd vs First American Bank Kenya Ltd & 2 Others [2003] eKLR as follows:
“ a prima facie case in a civil application includes but is 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 that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”
The case of the applicant and particularly the 1st applicant who is the spouse of the registered owner of the unit land is that no spousal consent was sought from her to charge the suit property to the 3rd respondent and that her matrimonial home and the home of her entire family is on the suit land. Further she claims that the signatures in the document accompanying the charge which are purported to be hers are not her signatures. The 1st respondent alleges that he has repaid the loan advanced to him. All these are matters that will be interrogated and proved or not proved in the hearing.
In the meantime, it has not been denied that the 1st applicant is the spouse of the 1st respondent the registered owner of the suit land and the person who charged the land to the 3rd respondent and that her matrimonial home is on the suit land. Spousal consent is a requirement of law before matrimonial home can be charged. Section 79(3) of the Land Act provides as follows:
“A charge of a matrimonial home, shall be valid if any document or form used in applying for such a charge, or used to grant the charge, is executed by the chargor and any spouse of the chargor living in that matrimonial home, or there is evidence from the document that it has been assented to by all such persons.”
In AKK v JMK & 3 others [2019] e KLR the court observed that ‘’In the absence of the spousal consent or if the Court is to hold in its final findings that there was no spousal consent then, it follows that the sale agreement and the Charge would automatically be invalidated.’’
In this case the spouse has denied executing the spousal consent . As the applicants have their homes on the suit land, if the sale proceeds, the applicant will be rendered homeless yet there are the issues raised in the plaint to be determined.
I find that a prima facie case has been demonstrated and that unless the order sought is granted the applicant will suffer irreparable injury.
The application is allowed as follows: -
i. an order of temporary injunction is hereby issued restraining the 3rd and 4th defendants/respondents either by themselves, nominated agents, servants and or anyone claiming and/or acting under the said 3rd and 4th defendants/respondents from exercising the Statutory Power of Sale over and in respect of LR NO. NORTH MARAGOLI/LYADUYIA/2143 and in particular from advertising for sale, selling vide public auction and/or private treaty, disposing of, transferring, leasing, alienating clogging and/or in any other manner interfering with the plaintiffs’/applicants’ rights and/or interests therein pending the hearing and determination of the instant suit.
ii. Costs of the application to be in the main suit.
Orders accordingly.
Ruling dated and signed at Vihiga and read virtually this 12th day of February 2026 through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Ajevi--Court Assistant.
Langat for the Applicants.
Mondia for the 3rd Respondent.
| ELCEPC NO. E002 OF 20256 |