1. For determination is the Plaintiffs’ Notice of motion application dated 12th February 2025 brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 rules 1, 2, 3 and 4, Order 51 rule 1 and Articles 10 (1), 20, 21, 27, 40(3), 47, 50 (1), 60 and 64 of the Constitution 2010. The application seeks for orders that:-
i. Spent
ii. Spent
iii. Pending the hearing and determination of the main suit, this Honourable Court be pleased to issue a temporary injunction restraining the Defendant from exercising its statutory power of sale over the suit property known as I.R No. 135319 (house number 10 and DSQ No. 10A and 10B).
iv. In the alternative and without prejudice to the foregoing, this Honourable Court be pleased to issue an order for the maintenance of status quo with a view to preserve the suit property known as as I.R No. 135319 (house number 10 and DSQ No. 10A and 10B), pending hearing and determination of this application and by extension the main suit.
v. The costs of this application be provided for.
2. The application is supported by the affidavit of Divyesh Indubhai Patel, the 1st Applicant herein, and is premised on alleged non-compliance by the Defendant with the mandatory requirements of Sections 96 and 97 of the Land Act, 2012, in its attempt to exercise its statutory power of sale. Specifically, the Plaintiffs argue that the Defendant failed to issue the second statutory notice under Section 96 and that the initial statutory notice was omnibus in nature. The Plaintiffs also allege that there was no valuation of the charged property as required under Section 97.
3. The application is opposed through a replying affidavit sworn on 3rd March 2025 and a further replying affidavit by the Defendant’s director, Mr. Kunal Kamlesh Bid. The Defendant contends that it complied with the provisions of the Land Act and only moved to issue the second statutory notice after the lapse of the first notice. The Defendant further maintains that the Plaintiffs defaulted on the loan and have not remedied the breach.
4. The Respondent filed a Further Replying Affidavit dated 24th March 2025. In the said affidavit, sworn by Kunal Kamlesh Bid, it is deponed that the initial statutory notice lapsed on 2nd March 2025, and that a second statutory notice was subsequently issued on 5th March 2025.
5. The application was canvassed by way of written submissions. The Applicant filed its submissions dated 17th March 2025, whilst the Respondent filed theirs dated 28th March 2025.
Analysis and Determination
6. Having considered the instant application, the affidavits in response the rival submissions and the authorities relied upon, the sole issue for determination in this matter is whether the applicants have met the threshold for granting a temporary injunction.
7. The relevant provision for granting a temporary injunction is Order 40 (1) of the Civil Procedure Rules, 2010 which stipulates that; -
“ 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; or
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 orders.”
8. In considering interlocutory injunction applications, Courts are guided by the principles laid down in Giella v Cassman Brown & Co. Ltd [1973] E.A. 358, as further reinforced in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2013] eKLR. The applicable tests are:-
a. The applicant must show a prima facie case with a probability of success;
b. An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not be adequately compensated by an award of damages;
c. If the court is in doubt, it will decide an application on the balance of convenience.
9. On whether the applicants have made out a prima facie case with a probability of success to warrant the grant of the injunction, the guiding principle is well established. In the case of Mrao vs First American Bank of Kenya Limited & 2 Others (2003) KLR 125, the Court of Appeal defined a prima facie case 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. “
10. In the present case, it is not in dispute that the 3rd Plaintiff obtained a loan of Kshs. 60,000,000 from the Defendant, which was secured by a charge over the suit property. It is equally undisputed that the 3rd Plaintiff defaulted on repayment, as admitted in paragraph 6 of the Plaintiffs’ supporting affidavit and paragraph 11 of the Plaint.
11. From the pleadings, it is common ground that the Defendant issued the first statutory notice dated 21st November 2024 in compliance with Section 90 of the Land Act.
12. The Plaintiff submitted that the statutory notice dated 21st November 2024 issued by the Respondent was omnibus in nature, as it threatened to have the charged properties sold or offered for sale upon the lapse of three months from the date of service. According to the Applicant, the said notice made reference to the provisions of Sections 90(2) and 96(2) of the Land Act, a clear indication that the Respondent did not intend to issue any further notices, thereby exposing the Plaintiff to the imminent risk of sale or alienation of the charged properties without adherence to the due process of the law.
13. In response, the Defendant denied the Plaintiffs’ allegations. In paragraph 11 of the Replying Affidavit, the Defendant’s director deponed that the Defendant issued a statutory notice dated 21st November 2024 pursuant to Section 90 of the Land Act, which was addressed to the 1st and 2nd Plaintiffs in their capacity as chargors.
14. It is apparent from the evidence before the Court, including the Defendant’s further replying affidavit, that a second statutory notice was duly issued on 5th March 2025 after the lapse of the first notice. The Defendant has attached evidence, including a copy of the notice and certificate of posting (Exhibit KKB 6), confirming its compliance with Section 96(2) of the Land Act.
15. Consequently, it is the finding of this Court that the Plaintiff’s allegation that the Defendant failed to issue a second statutory notice was premature, and not supported by the facts. Also speculative is the Plaintiff’s argument is the Defendant is likely to sell the charged property without undertaking the requisite valuation contrary to section 97 of the Land Act.
16. On the whole, the Plaintiffs have not demonstrated that there has been any violation of statutory procedure by the Defendant. Accordingly, this Court finds that the Plaintiffs have not established a prima facie case with a probability of success.
17. The second limb under Giella vs Cassman Brown(supra) is that an applicant must also establish that it will suffer irreparable loss if an order of injunction is not issued. In Halsbury’s Laws of England [Halsbury’s Laws of England, Third Edition, Volume 21, paragraph 739, page 352.] it is stated that: -
“It is the very first principle of injunction law that prima facie the court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. Where the court interferes by way of an injunction to prevent an injury in respect of which there is a legal remedy, it does so upon two distinct grounds first, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages an injunction may be granted, if the act in respect of which relief is sought is likely to destroy the subject matter in question”In order to show irreparable harm, the moving party must demonstrate that it is a harm that cannot be quantified in monetary terms or which cannot be cured. But what exactly is "irreparable harm"? Robert Sharpe, in "Injunctions and Specific Performance,"[ Robert Sharpe, Injunctions and Specific Performance, looseleaf, (Aura, On: Cananda Law Book, 1992), P 2-27] states that "irreparable harm has not been given a definition of universal application: its meaning takes shape in the context of each particular case."
18. In T W M v P K M & 2 others [2017] eKLR, the Court stated as follows on the question of irreparable harm: -
“On the issues of irreparable loss, this case brings out an important contractual principle that security pledged to a financial institution or bank stands the risk of being sold and the intended sale is within the contemplation of the parties to the loan agreement. In other words, the sale of property by the mortgagee cannot lead to irreparable loss since it is the contractual arrangement or intention of the parties and expressly provided for in the loan agreement or mortgage deed. Exceptions to the general rule must relate to issues like whether the mortgagor is in default and whether statutory power of sale has arisen. Where the agreed amount has not been paid and the borrower is still in default on the agreed amount, the right of the bank to sell is established, and what the court can do is to cause the ascertainment of the right value for forced sale of the property.”
19. The property in question is charged as security for a loan. As indicated above, such property becomes a commodity liable for sale upon default. If sold, the Plaintiffs can be adequately compensated in damages should the sale be later found to be unlawful. Therefore, it is the view of the Court that no irreparable harm has been demonstrated.
20. The balance of convenience in this matter favours the Defendant. The Plaintiffs have admitted default, and the Defendant is exercising a lawful remedy. Restraining the Defendant at this stage would amount to granting a remedy in favour of a party in breach of contractual obligations.
21. The upshot is that the Defendant’s application dated 12th February 2025 filed herein is found without merit and is accordingly dismissed with costs.
22. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
19TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
………………………..for the Applicant
……………………....for Responden t
i. Spent
ii. Spent
iii. Pending the hearing and determination of the main suit, this Honourable Court be pleased to issue a temporary injunction restraining the Defendant from exercising its statutory power of sale over the suit property known as I.R No. 135319 (house number 10 and DSQ No. 10A and 10B).
iv. In the alternative and without prejudice to the foregoing, this Honourable Court be pleased to issue an order for the maintenance of status quo with a view to preserve the suit property known as as I.R No. 135319 (house number 10 and DSQ No. 10A and 10B), pending hearing and determination of this application and by extension the main suit.
v. The costs of this application be provided for.
2. The application is supported by the affidavit of Divyesh Indubhai Patel, the 1st Applicant herein, and is premised on alleged non-compliance by the Defendant with the mandatory requirements of Sections 96 and 97 of the Land Act, 2012, in its attempt to exercise its statutory power of sale. Specifically, the Plaintiffs argue that the Defendant failed to issue the second statutory notice under Section 96 and that the initial statutory notice was omnibus in nature. The Plaintiffs also allege that there was no valuation of the charged property as required under Section 97.
3. The application is opposed through a replying affidavit sworn on 3rd March 2025 and a further replying affidavit by the Defendant’s director, Mr. Kunal Kamlesh Bid. The Defendant contends that it complied with the provisions of the Land Act and only moved to issue the second statutory notice after the lapse of the first notice. The Defendant further maintains that the Plaintiffs defaulted on the loan and have not remedied the breach.
4. The Respondent filed a Further Replying Affidavit dated 24th March 2025. In the said affidavit, sworn by Kunal Kamlesh Bid, it is deponed that the initial statutory notice lapsed on 2nd March 2025, and that a second statutory notice was subsequently issued on 5th March 2025.
5. The application was canvassed by way of written submissions. The Applicant filed its submissions dated 17th March 2025, whilst the Respondent filed theirs dated 28th March 2025.
Analysis and Determination
6. Having considered the instant application, the affidavits in response the rival submissions and the authorities relied upon, the sole issue for determination in this matter is whether the applicants have met the threshold for granting a temporary injunction.
7. The relevant provision for granting a temporary injunction is Order 40 (1) of the Civil Procedure Rules, 2010 which stipulates that; -
“ 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; or
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 orders.”
8. In considering interlocutory injunction applications, Courts are guided by the principles laid down in Giella v Cassman Brown & Co. Ltd [1973] E.A. 358, as further reinforced in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2013] eKLR. The applicable tests are:-
a. The applicant must show a prima facie case with a probability of success;
b. An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not be adequately compensated by an award of damages;
c. If the court is in doubt, it will decide an application on the balance of convenience.
9. On whether the applicants have made out a prima facie case with a probability of success to warrant the grant of the injunction, the guiding principle is well established. In the case of Mrao vs First American Bank of Kenya Limited & 2 Others (2003) KLR 125, the Court of Appeal defined a prima facie case 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. “
10. In the present case, it is not in dispute that the 3rd Plaintiff obtained a loan of Kshs. 60,000,000 from the Defendant, which was secured by a charge over the suit property. It is equally undisputed that the 3rd Plaintiff defaulted on repayment, as admitted in paragraph 6 of the Plaintiffs’ supporting affidavit and paragraph 11 of the Plaint.
11. From the pleadings, it is common ground that the Defendant issued the first statutory notice dated 21st November 2024 in compliance with Section 90 of the Land Act.
12. The Plaintiff submitted that the statutory notice dated 21st November 2024 issued by the Respondent was omnibus in nature, as it threatened to have the charged properties sold or offered for sale upon the lapse of three months from the date of service. According to the Applicant, the said notice made reference to the provisions of Sections 90(2) and 96(2) of the Land Act, a clear indication that the Respondent did not intend to issue any further notices, thereby exposing the Plaintiff to the imminent risk of sale or alienation of the charged properties without adherence to the due process of the law.
13. In response, the Defendant denied the Plaintiffs’ allegations. In paragraph 11 of the Replying Affidavit, the Defendant’s director deponed that the Defendant issued a statutory notice dated 21st November 2024 pursuant to Section 90 of the Land Act, which was addressed to the 1st and 2nd Plaintiffs in their capacity as chargors.
14. It is apparent from the evidence before the Court, including the Defendant’s further replying affidavit, that a second statutory notice was duly issued on 5th March 2025 after the lapse of the first notice. The Defendant has attached evidence, including a copy of the notice and certificate of posting (Exhibit KKB 6), confirming its compliance with Section 96(2) of the Land Act.
15. Consequently, it is the finding of this Court that the Plaintiff’s allegation that the Defendant failed to issue a second statutory notice was premature, and not supported by the facts. Also speculative is the Plaintiff’s argument is the Defendant is likely to sell the charged property without undertaking the requisite valuation contrary to section 97 of the Land Act.
16. On the whole, the Plaintiffs have not demonstrated that there has been any violation of statutory procedure by the Defendant. Accordingly, this Court finds that the Plaintiffs have not established a prima facie case with a probability of success.
17. The second limb under Giella vs Cassman Brown(supra) is that an applicant must also establish that it will suffer irreparable loss if an order of injunction is not issued. In Halsbury’s Laws of England [Halsbury’s Laws of England, Third Edition, Volume 21, paragraph 739, page 352.] it is stated that: -
“It is the very first principle of injunction law that prima facie the court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. Where the court interferes by way of an injunction to prevent an injury in respect of which there is a legal remedy, it does so upon two distinct grounds first, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages an injunction may be granted, if the act in respect of which relief is sought is likely to destroy the subject matter in question”In order to show irreparable harm, the moving party must demonstrate that it is a harm that cannot be quantified in monetary terms or which cannot be cured. But what exactly is "irreparable harm"? Robert Sharpe, in "Injunctions and Specific Performance,"[ Robert Sharpe, Injunctions and Specific Performance, looseleaf, (Aura, On: Cananda Law Book, 1992), P 2-27] states that "irreparable harm has not been given a definition of universal application: its meaning takes shape in the context of each particular case."
18. In T W M v P K M & 2 others [2017] eKLR, the Court stated as follows on the question of irreparable harm: -
“On the issues of irreparable loss, this case brings out an important contractual principle that security pledged to a financial institution or bank stands the risk of being sold and the intended sale is within the contemplation of the parties to the loan agreement. In other words, the sale of property by the mortgagee cannot lead to irreparable loss since it is the contractual arrangement or intention of the parties and expressly provided for in the loan agreement or mortgage deed. Exceptions to the general rule must relate to issues like whether the mortgagor is in default and whether statutory power of sale has arisen. Where the agreed amount has not been paid and the borrower is still in default on the agreed amount, the right of the bank to sell is established, and what the court can do is to cause the ascertainment of the right value for forced sale of the property.”
19. The property in question is charged as security for a loan. As indicated above, such property becomes a commodity liable for sale upon default. If sold, the Plaintiffs can be adequately compensated in damages should the sale be later found to be unlawful. Therefore, it is the view of the Court that no irreparable harm has been demonstrated.
20. The balance of convenience in this matter favours the Defendant. The Plaintiffs have admitted default, and the Defendant is exercising a lawful remedy. Restraining the Defendant at this stage would amount to granting a remedy in favour of a party in breach of contractual obligations.
21. The upshot is that the Defendant’s application dated 12th February 2025 filed herein is found without merit and is accordingly dismissed with costs.
22. It is so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
19TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
………………………..for the Applicant
……………………....for Responden t