A. Introduction
Before this Court is the Plaintiff’s Notice of Motion dated 5th November 2025, brought under Articles 40 and 159 of the Constitution of Kenya, 2010, Sections 1A and 1B of the Civil Procedure Act, Order 40 Rule 1 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law.
The Plaintiff seeks, inter alia, an order of permanent injunction restraining the Defendants, whether by themselves, their servants, agents or employees, from offering for sale, selling, advertising, disposing of, alienating or in any manner dealing with LR No. Mainland North/Section 1/13414 (CR No. 51565) pending the hearing and determination of the suit.
The Application is supported by the Affidavit of Ben Gitonga Muiruri Mungai, sworn on 5th November 2025, and is opposed by the 2nd Defendant through a Replying Affidavit sworn by Jackson Oiner.
B. The Plaintiff’s Case
The Plaintiff avers that he is the registered proprietor of LR No. Mainland North/Section 1/13414 (CR No. 51565) together with all the developments erected thereon, including his residential house.
He states that sometime in the year 2010, he obtained a mortgage loan of Kshs. 12,500,000/= from the 2nd Defendant and charged the suit property as security.
It is the Plaintiff’s case that he has been servicing the loan but that the outstanding amount has allegedly ballooned to Kshs. 42,657,138.93, which he terms as unlawful, exorbitant and contrary to the in duplum rule.
The Plaintiff contends that the excessive amount is a result of illegal interest, penalties and bank charges, which have more than tripled the original loan amount.
He further avers that on or about 27th October 2025, the Defendants advertised the suit property for sale by public auction scheduled for 20th November 2025, thereby prompting the present Application.
The Plaintiff maintains that unless restrained, the Defendants will proceed with the auction, causing him irreparable loss that cannot be adequately compensated by damages.
C. The Defendants’ Case
The 2nd Defendant disputes the Plaintiff’s assertions and states that the Plaintiff obtained multiple loan facilities, totaling Kshs. 29,480,000, as detailed in paragraph 4 of the Replying Affidavit.
It is the 2nd Defendant’s position that the amounts claimed are contractually due and that it is lawfully exercising its statutory power of sale.
The Defendants deny any illegality in the computation of interest and contend that the Application is intended to frustrate lawful recovery.
D. Further Affidavit
In his Further Affidavit, the Plaintiff reiterates that he fully repaid the Kshs. 7,000,000/= mortgage facility and the hire purchase loans and complains that he has not been supplied with complete loan statements to verify the alleged outstanding sums.
E. Issues for Determination
Having considered the pleadings and submissions, the Court identifies the following issues for determination:
a. Whether the Plaintiff has established a prima facie case;
b. Whether the dispute on accounts and interest raises triable issues; and
c. Whether interim injunctive relief ought to be confirmed pending trial.
F. Analysis and Determination
The crux of this dispute revolves around the computation of the outstanding loan balance, the applicability of the in duplum rule, and the accuracy of the accounts relied upon by the 2nd Defendant.
The Plaintiff admits borrowing money but contests the amount claimed. This Court notes that a dispute on accounts and interest computation is a legitimate triable issue.
In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, the Court of Appeal defined a prima facie case as one that discloses an apparent right which has been infringed and which calls for an explanation or rebuttal.
Similarly, in Andrew Muriuki Wanjohi v Equity Building Society Ltd & 2 Others [2006] eKLR, the Court held that disputes on interest and accounts may warrant injunctive relief pending trial.
On the in duplum rule, Section 44A of the Banking Act restricts recovery of interest once a loan becomes non-performing. Courts have consistently upheld this principle, including in Joseph Okoth Waudi v National Bank of Kenya Ltd [2006] eKLR.
While it is trite law that a chargee’s statutory power of sale should not be lightly interfered with, the same must be exercised lawfully and in good faith. In Thathy v Middle East Bank (K) Ltd [2002] 1 KLR 595, the court held that a genuine dispute on accounts may justify injunctive relief.
The suit property is the Plaintiff’s residence, and once sold by public auction, the loss would be irreversible. This satisfies the irreparable harm limb as set out in Giella v Cassman Brown & Co. Ltd [1973] EA 358.
The Court had earlier granted conditional interim orders, requiring the Plaintiff to pay the admitted amount. That approach aligns with the overriding objective under Sections 1A and 1B of the Civil Procedure Act.
At this interlocutory stage, the Court is not called upon to conclusively determine the correctness of the accounts, but to preserve the substratum of the suit.
In the circumstances, the balance of convenience tilts in favour of maintaining the status quo pending the hearing and determination of the suit.
G. Disposition
Consequently, the Court makes the following orders:
a. The interim injunctive orders earlier issued are hereby confirmed pending the hearing and determination of this suit. The period within which to make the deposit runs from the date when the initial order was given,
b. The 2nd Defendant shall, within fourteen (14) days, file and serve a Defence together with complete, updated and itemised statements of account in respect of all loan facilities advanced to the Plaintiff.
c. The parties are directed to endeavour to reconcile and resolve the accounting dispute prior to the pre-trial conference.
d. The matter shall be mentioned on 11/02/2026 for pre-trial directions.
e. Costs of the Application shall abide the outcome of the suit.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS …17TH… DAY OF …DECEMBER…… 2025
WENDY KAGENDO
JUDGE
Before this Court is the Plaintiff’s Notice of Motion dated 5th November 2025, brought under Articles 40 and 159 of the Constitution of Kenya, 2010, Sections 1A and 1B of the Civil Procedure Act, Order 40 Rule 1 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law.
The Plaintiff seeks, inter alia, an order of permanent injunction restraining the Defendants, whether by themselves, their servants, agents or employees, from offering for sale, selling, advertising, disposing of, alienating or in any manner dealing with LR No. Mainland North/Section 1/13414 (CR No. 51565) pending the hearing and determination of the suit.
The Application is supported by the Affidavit of Ben Gitonga Muiruri Mungai, sworn on 5th November 2025, and is opposed by the 2nd Defendant through a Replying Affidavit sworn by Jackson Oiner.
B. The Plaintiff’s Case
The Plaintiff avers that he is the registered proprietor of LR No. Mainland North/Section 1/13414 (CR No. 51565) together with all the developments erected thereon, including his residential house.
He states that sometime in the year 2010, he obtained a mortgage loan of Kshs. 12,500,000/= from the 2nd Defendant and charged the suit property as security.
It is the Plaintiff’s case that he has been servicing the loan but that the outstanding amount has allegedly ballooned to Kshs. 42,657,138.93, which he terms as unlawful, exorbitant and contrary to the in duplum rule.
The Plaintiff contends that the excessive amount is a result of illegal interest, penalties and bank charges, which have more than tripled the original loan amount.
He further avers that on or about 27th October 2025, the Defendants advertised the suit property for sale by public auction scheduled for 20th November 2025, thereby prompting the present Application.
The Plaintiff maintains that unless restrained, the Defendants will proceed with the auction, causing him irreparable loss that cannot be adequately compensated by damages.
C. The Defendants’ Case
The 2nd Defendant disputes the Plaintiff’s assertions and states that the Plaintiff obtained multiple loan facilities, totaling Kshs. 29,480,000, as detailed in paragraph 4 of the Replying Affidavit.
It is the 2nd Defendant’s position that the amounts claimed are contractually due and that it is lawfully exercising its statutory power of sale.
The Defendants deny any illegality in the computation of interest and contend that the Application is intended to frustrate lawful recovery.
D. Further Affidavit
In his Further Affidavit, the Plaintiff reiterates that he fully repaid the Kshs. 7,000,000/= mortgage facility and the hire purchase loans and complains that he has not been supplied with complete loan statements to verify the alleged outstanding sums.
E. Issues for Determination
Having considered the pleadings and submissions, the Court identifies the following issues for determination:
a. Whether the Plaintiff has established a prima facie case;
b. Whether the dispute on accounts and interest raises triable issues; and
c. Whether interim injunctive relief ought to be confirmed pending trial.
F. Analysis and Determination
The crux of this dispute revolves around the computation of the outstanding loan balance, the applicability of the in duplum rule, and the accuracy of the accounts relied upon by the 2nd Defendant.
The Plaintiff admits borrowing money but contests the amount claimed. This Court notes that a dispute on accounts and interest computation is a legitimate triable issue.
In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, the Court of Appeal defined a prima facie case as one that discloses an apparent right which has been infringed and which calls for an explanation or rebuttal.
Similarly, in Andrew Muriuki Wanjohi v Equity Building Society Ltd & 2 Others [2006] eKLR, the Court held that disputes on interest and accounts may warrant injunctive relief pending trial.
On the in duplum rule, Section 44A of the Banking Act restricts recovery of interest once a loan becomes non-performing. Courts have consistently upheld this principle, including in Joseph Okoth Waudi v National Bank of Kenya Ltd [2006] eKLR.
While it is trite law that a chargee’s statutory power of sale should not be lightly interfered with, the same must be exercised lawfully and in good faith. In Thathy v Middle East Bank (K) Ltd [2002] 1 KLR 595, the court held that a genuine dispute on accounts may justify injunctive relief.
The suit property is the Plaintiff’s residence, and once sold by public auction, the loss would be irreversible. This satisfies the irreparable harm limb as set out in Giella v Cassman Brown & Co. Ltd [1973] EA 358.
The Court had earlier granted conditional interim orders, requiring the Plaintiff to pay the admitted amount. That approach aligns with the overriding objective under Sections 1A and 1B of the Civil Procedure Act.
At this interlocutory stage, the Court is not called upon to conclusively determine the correctness of the accounts, but to preserve the substratum of the suit.
In the circumstances, the balance of convenience tilts in favour of maintaining the status quo pending the hearing and determination of the suit.
G. Disposition
Consequently, the Court makes the following orders:
a. The interim injunctive orders earlier issued are hereby confirmed pending the hearing and determination of this suit. The period within which to make the deposit runs from the date when the initial order was given,
b. The 2nd Defendant shall, within fourteen (14) days, file and serve a Defence together with complete, updated and itemised statements of account in respect of all loan facilities advanced to the Plaintiff.
c. The parties are directed to endeavour to reconcile and resolve the accounting dispute prior to the pre-trial conference.
d. The matter shall be mentioned on 11/02/2026 for pre-trial directions.
e. Costs of the Application shall abide the outcome of the suit.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS …17TH… DAY OF …DECEMBER…… 2025
WENDY KAGENDO
JUDGE