REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL CASE NO. E004 OF 2024
(Coram: Andayi W. F., J.)
END TO END LIMITED…………………….............................1 ST PLAINITFF/APPLICANT
SAMMY ANDREW MATANO……………............................2 ND PLAINTIFF/APPLICANT
VERSUS
RAFIKI MICRO-FINANCE LIMITED........................1 ST DEFENDANT/RESPONDENT
COUNTY GOVERNMENT OF KWALE...................2 ND DEFENDANT/RESPONDENT
RULING
1. The application herein dated 3 rd December 2025 is the second one seeking an injunction against the 1 st defendant to restrain it from selling, disposing of and/or dealing with the property known as LR No. MN/V/1897 (C.R. 62381) situated at Bonje area, Mazeras Sub-County, Kilifi County pending the hearing and determination of the suit. End to End Limited, the 1 st plaintiff is the borrower; Sammy Andrew Matano, the 2 nd plaintiff is the chargor and guarantor of the loan borrowed by the 1 st plaintiff while the 1 st defendant, Rafiki Microfinance Limited is the lender and chargee.
2. On 18 th February 2025, this court issued orders on the application in the following terms:
a. The 1 st respondent shall render to the applicants a full statement of account of the loan in issue in accordance with the stipulated terms of the loan agreement within 30 days from the date hereof and thereafter comply with the provisions of section 96(2) of the Land Act (Cap. 280) Laws of Kenya by issuing the requisite notices to sell the suit property.
b. A conditional temporary injunction restraining the proposed sale of the suit property is hereby issued pending the fulfilment of the condition in (a) above and that upon the fulfilment of the said condition the conditional temporary injunction shall stand vacated.
c. The 1 st respondent shall bear the costs of this application and also pay the auctioneers charges so far.
3. The 2 nd applicant, Sammy Andrew Matano has come back to this court through a Notice of Motion dated 3 rd December 2025 seeking an order of temporary injunction to restrain the 1 st defendant its servants, employees and agents from advertising, purporting to advertise, selling by either private treaty or public auction or in any other way purporting to sell, disposing of and/or dealing with the property known as LR No. MN/V/1897 (C.R. 62381) situated at Bonje area, Mazeras, Kilifi pending the hearing and determination of the suit. Secondly that the plaintiffs be allowed by this court after complete audit of the loan statement and clear balance agreed between the 1 st defendant and the plaintiffs to get buyer and sell the said property and pay off the outstanding loan balance. Finally, that the costs be awarded to the plaintiffs.
4. The applicant herein was part of the previous application which was however principally argued by the 1 st plaintiff End-to-End Limited as the borrower.
5. The application is brought under Order 40 of the Civil Procedure Rules, 2010.
6. The grounds in support of the application are set out on the face thereof and expounded in the supporting affidavit sworn on 3 rd December 2025 and a supplementary affidavit sworn on 31 st March 2026 by Sammy Andrew Matano, the 2 nd plaintiff/applicant. The application is further supported by the replying affidavit of Abdirahman Mohamud Abdow, a director of the 1 st plaintiff End to End Limited sworn on 21 st January 2026.
7. The grounds are that the applicant is the registered owner of the subject property which he had charged to the 1 st defendant as security for loan of KShs 15,000,000/= granted to the 1 st plaintiff End-to-End Ltd. Both plaintiffs depose in their respective affidavits that the 1 st defendant has scheduled the property for sale on 8 th December 2025 (now past) but neither of the plaintiffs was served with the mandatory 90-day notice under section 90(1) of the Land Act nor the 40-day mandatory notice under section 96(2) of the Land Act but is instead improperly relying on a date contained in redemption notice which was belatedly and irregularly served upon the defendant (sic) the loan borrower, without complying with the orders issued by this court on 19 th February 2025. The applicant contends that for that reason, the defendant’s statutory power of sale has not arisen and therefore the intended auction is illegal, premature and void ab initio.
8. The applicant deposes that contrary to the court’s orders issued on 19 th February 2025, the 1 st defendant has never supplied the plaintiffs with the loan statement. He deposes in the supplementary affidavit that this court ordered that the 1 st defendant supplies the plaintiffs with “audited” statement of loan balance before proceeding with the intended advertisement and sale of the suit property. Reference to “audited” statement of loan in the supplementary affidavit is misleading because this court did not say that the statements of loan account were to be audited.
9. The grounds allege further that previously on 9 th December 2023, the 1 st defendant served a redemption notice with a highly exaggerated outstanding loan balance of KShs 75,067,558.37 which the plaintiffs contested and this has since been reduced to KShs 48,033,956.66 (KShs 47,067.558.37 as per the affidavit of Abdirahman Mohamed Abdow) and that the 1 st defendant has refused to explain the disparity, an indication of fraud on the part of the 1 st defendant.
10. The applicant deposes that other than the charge registered on the property for the loan of KShs 15,000,000/= granted to the 1 st plaintiff by the 1 st defendant, of which the 1 st defendant repaid KShs 3,800,000/=, no further charge has been created upon the property.
11. The applicant deposes in the supplementary affidavit that he never executed any of the further charge as stated by the 1 st defendant in its replying affidavit and the further charge was never registered on the title nor duly executed by both parties and so he was not a party thereto nor was he aware of the same. He deposes further that the 1 st defendant has referred to a letter of offer dated 15 th July 2020 which letter is not annexed to the replying affidavit as alleged. According to the 2 nd plaintiff, the whereabouts of such a letter is unknown.
12. He deposes further that there was no disbursement or evidence of disbursement of the alleged further KShs 22,900,000/= to the plaintiff’s account and the same is not shown anywhere in the statements of account supplied by the 1 st defendant. According to the 2 nd plaintiff, the 1 st defendant unilaterally settled certain inter-bank obligations with other customers during a loan portfolio transfer between the banks, without the plaintiff’s consent or participation, and later sought to bind the plaintiff to those terms through fabricated documents.
13. Further that the 1 st defendant is relying upon misleading valuations of the property for the intended sale which have grossly undervalued and greatly depreciated it thereby breaching the 1 st defendants’ statutory duty of care towards the plaintiffs under section 97(1) and (2) of the Land Act. It is deposed that the plaintiffs have engaged their own valuation which reveals the extend of undervaluation. However, this court has not been shown any new valuation of the property made by the plaintiffs after the court’s ruling of 19 th February 2025 and if the 2 nd plaintiff is referring to any earlier valuation, the same was dealt with by this court in its said ruling.
14. The application therefore raises the following issues:
a. Failure by the 1 st respondent to supply the plaintiffs with the correct loan statement as ordered by this court on 19 th February 2026.
b. Failure by the 1 st respondent to issue proper statutory notices under sections 90(1) and 96(2) of the Land Act and instead relying on a redemption notice which was in any case irregularly served.
c. Undervaluation of the property with an intention to fraudulently dispose of the same,
15. The application is opposed by the 1 st respondent through a replying affidavit sworn on 23 rd February 2026 by Robert Kirui, the manager, debt recovery unit who deposes that the application does not meet the threshold for granting the reliefs sought.
16. The replying affidavit responds to each of the issues above raised by the applicant in the following way.
a. The bank advanced to the 1 st plaintiff a sum of KShs 15,000,000/= secured by a first legal charge dated 6 th September 2018 upon property L.R. No. MN/V/1897 (C.R. 62381).
b. The 2 nd plaintiff/applicant herein provided the bank with a guarantee/indemnity dated 6 th September 2018 for the sum of KShs 15,000,000/=.
c. The bank was to make advances/loans/financial facilities from time to time to the borrower at the request of the chargor (emphasis in italics by this court)
d. The amount was to be repaid by the borrower and chargor jointly and severally on the 7 th day after the date of the charge.
e. The bank disbursed KShs 15,000,000/= to the 1 st plaintiff’s account No. 0051004000217. According to the bank statement provided by the 1 st defendant as annexure “RK 3” for the said account in the name of End-to-End Ltd, although it is indicated to be for the period 1 st November 2017 to 30 th November 2018, the transaction entries in the statement provided start on 4 th September 2018 and end on 8 th November 2018 without balancing off the account as having been closed for any particular period. There are two more statements of account annexed to the replying affidavit.
i. There is the statement marked “RK 7” in the name of End to End Limited, account No. 0051510000051 indicated to be for the period 29 th September 2017 to 26 th February 2024. The transactions therein start on 14 th August 2020 showing loan disbursed of KShs 23,717,048. The next transaction is recorded one year later on 14 th August 2021 as Interest Debit: August 2021, KShs 5,454,921.05 On the same date there is an entry of “loan repayment A/C 0051004000217 with a credit entry of KShs 0.55 making the debit balance of KShs 29,171,968.50. The statement ends with an entry of a debit balance of KShs 80,461,732.45) on 1 st January 2024.
ii. The other statement is marked “RK 9” in the name of End to End Limited for account No. 0051510000051 indicated thereon to be for the period 1 st January 2000 to 18 th December 2024. It is the same statement as (i) above only that it captures the transactions that came after 1 st January 2024.
f. It is deposed that the Plaintiffs failed to service the loan leading to arrears of KShs 25,410,353.61.
g. The 1 st plaintiff approached the bank through a letter dated 15 th July 2020 for an additional facility of KShs 22,900,000/= to be secured by the first legal charge of KShs 15,000,000/=. There is however no indication that the 2 nd plaintiff was part of this request as was required as per the terms of the charge.
h. The 1 st defendant deposes that the sum of KShs 23,717,048/= was disbursed as per the second bank statement discussed in (e)(i) above.
17. On the allegation that the bank has failed to comply with the orders of the court, the deponent deposes that the bank indeed complied by providing to the plaintiffs’ advocates then on record the full statement of account of the loan and issued the requisite notices to the borrower, the chargor/guarantor, and the spouse of the chargor/guarantor. The manager has annexed to the replying affidavit copies of the bank statements supplied and the relevant notices as deposed.
18. The bank, in exercise of its statutory power of sale, then issued instructions to Five Eleven Traders & Auctioneers to sell the suit property. The said auctioneers issued and duly served a redemption notice to the borrower and the chargor and the public auction was scheduled for 22 nd December 2025 and not 8 th December 2025 as deposed by the applicant in his supporting affidavit.
19. The 1 st defendant deposes further that the bank conducted another valuation of the property through Liaison Valuers Ltd and a valuation report dated 17 th September 2025 is annexed to the affidavit.
20. In view of the foregoing, the 1 st defendant deposes that the applicant has not met the conditions for grant of an injunction and has come to court with unclean hands and so is not deserving of the equitable remedy of injunction.
21. The application was argued by way of written submissions supported by authorities filed by learned counsels for the 1 st plaintiff, End-to-End Ltd and the 1 st respondent/bank. Despite being the applicant, the 2 nd plaintiff Sammy Andrew Matano has not filed submissions on the application. The 2 nd defendant, County Government of Kwale has not participated in the proceedings thus far.
22. The 1 st plaintiff submits that it is the applicant in the application dated 3 rd December 2025 and that it filed a supporting affidavit. That is not correct because the applicant is the 2 nd plaintiff and the 1 st plaintiff filed a replying and not supporting affidavit. Not unless the 1 st plaintiff wishes the court to understand that it was only using the 2 nd plaintiff’s name as a ploy to front the application when in fact it was the one that filed it.
23. The 1 st plaintiff submits that there are two issues for determination:
a. Whether or not the court should issue a temporary injunction pending the hearing and determination of the suit.
b. Whether the court should order an audit of the loan account as a condition precedent to the exercise of the the 1 st defendant’s statutory power of sale.
24. The bank argued the application on two fronts, which are:
a. Whether the 1 st defendant complied with the orders of this court issued on 9 th February 2026.
b. Whether the and plaintiff’s application dated 3 rd December 2025 has merit.
25. I have considered the application and the response thereto by the 1 st respondent as well as the submissions by learned counsels. The main issue for determination in this application is whether the 1 st respondent complied with this court’s orders issued on 19 th February 2025 and if so, it can proceed with the exercise of its power of sale and if not whether the applicant has thus satisfied the conditions for the issuance of temporary injunction.
26. It is discernible from the affidavits filed by the parties that Sammy Andrew Matano the 2 nd applicant is the registered owner of the charged property and a guarantor of a loan of KShs 15 million advanced to the borrower, the 1 st applicant by the bank/the 1 st respondent on or about 6/9/2028. The 2 nd applicant offered his subject parcel of land L.R. No. MN/V/1897 (C.R. 62381) as security for the loan whereby a legal charge was created over the property in favour of the bank.
27. The 2 nd plaintiff/applicant herein argues that the 1 st defendant has not complied with the orders of this court directing it to render to the applicants full statements of account of the loan in issue in accordance with the stipulated terms of the loan agreement within 30 days from the date of the ruling. The 1 st defendant on its part argues that it did provide the loan statements as directed by the court.
28. The 1 st defendant has annexed to the replying affidavit various bank statement for End to End Limited.
29. There is the statement for account No. 0051004000217, for End to End Ltd marked as “RK 3” indicated to be for the period 1 st November 2017 to 30 th November 2018 although the transaction entries are captured from 4 th September 2018 to 8 th November 2018. From this statement, the bank disbursed the sum of KShs 15,000,000/= to the 1 st plaintiff’s account No. 0051004000217 on 15 th September 2018. The entries end on 8 th November 2018 without balancing off the account as having been closed for any particular period.
30. There is the statement marked as “RK 9” for A/C No. 0051510000051 for the period 1 st January 2000 to 18 th December 2024. The transaction entries commenced on 14 th August 2020 and ended on 13 th August 2024. I have seen among the plaintiffs’ documents filed in court a copy of a certificate of incorporation No. C. 138579 for the 1 st plaintiff End to End Limited showing its date of incorporation as 24 th April 2007. I fail to understand how the bank statement relating to the 1 st plaintiff would then start running as from 1 st January 2000. I find this to be untidiness in the bank’s documentation with respect to the account the subject of this case which needs to be cleaned in order for the records to be clear for purpose.
31. There is the statement marked “RK 7” in the name of End to End Limited, account No. 0051510000051 indicated to be for the period 29 th September 2017 to 26 th February 2024. The transactions therein start on 14 th August 2020 showing loan disbursed of KShs 23,717,048. The next transaction is recorded one year later on 14 th August 2021 as Interest Debit: August 2021, KShs 5,454,921.05. On the same date there is an entry of “loan repayment A/C 0051004000217 with a credit entry of KShs 0.55 making the debit balance of KShs 29,171,968.50. The statement ends with an entry of a debit balance of KShs 80,461,732.45) on 1 st January 2024.
32. The other statement is marked “RK 9” in the name of End to End Limited for account No. 0051510000051 indicated thereon to be for the period 1 st January 2000 to 18 th December 2024. It is the same statement as in 30 above only that it captures the transactions that came after 1 st January 2024.
33. I find that what the 2 nd plaintiff is contesting is what is captured in the bank statement for account No. 0051510000051. Whereas this statement is properly balanced off and closed, as observed above the statement for account No. 0051004000217, which is the loan account that the 2 nd plaintiff acknowledges is aware of and for which he offered security of the charge, is not balanced and closed off for any specified period. It is left hanging, meaning that the account is open and running. However, the entries for the transactions after 8 th November 2018 are not provided. In view of that, this court finds that that bank statement is incomplete.
34. The two main complaints raised by the 2 nd defendant/applicant/chargor in this case with respect to the loan advanced to the 1 st defendant are that first, he was not party to the loan or credit facility being raised from 15 million as captured in the bank statement No. 0051004000217 to KShs 23,717,048/=, which is captured in the bank statement for account No. 0051510000051. Secondly, that the bank initially indicated to the chargor in the redemption notice dated 9 th December 2023 from Keysian Auctioneers that the outstanding amount was KShs 75,067,558.37 and without explanation the same was reduced to KShs 47, 899,816.66 in the bank’s statutory notice to the chargor on 21 st February 2026 after the court’s ruling. It is in the same letter that the bank indicates that it lent the borrower KShs 23,717,048 secured by a charge over title No. C.R. 1815/53 SUB 1897 (Original No. 289/61). The issue of correct statements of account is therefore important to this application.
35. The bank deposes that the 1 st applicant failed to service the loan as agreed leading to the accumulated arrears of KShs 25,410,353.61. Subsequently, the borrower approached the bank and the bank extended an additional facility of KShs 22,900,000/= through a letter dated 28 th July 2020 There is a supplementary letter of offer dated 13 th August 2020 showing that the maximum amount that the borrower could draw under the facility was KShs 23,684,453/= while the statement of account shows that the loan disbursed on 14 th August 2020 was KShs 23,717,048/=. This amount was to be applied for loan consolidation and restructure.
36. I have looked at the statement of account annexed to the replying affidavit and I note that as at 31 st July 2024, the balance on the account was a debit of KShs 99,002,530.71. On 31 st August 2024 there was reversal of penal interest of KShs 51,102,715.05 which made the closing balance as at 18 th December 2024 to be KShs 47,899,816.66 which is the sum claimed in the statutory notice dated 21 st February 2026. Since this calculation has not been challenged by the chargor by offering any other statement of account with different figures, I would find that it prima facie at this interlocutory stage explains the disparity between the initial demand for KShs 75,067,558.37 and the new demand of KShs 47,899,816.66.
37. However, it is apparent from the account number indicated on the statement as No. 0051510000051 that the calculation of this outstanding balance is based on the revised loan to the borrower of KShs 23,717,048 and not the initial KShs 15,000,000/= (the proper figure being KShs 16,197,426/= after loan processing charges were loaded thereon). The sticking point is that the chargor/applicant herein maintains that only the sum of KShs 15,000,000/= was secured by the charge upon his property.
38. Annexure “RK 4”, was the First Statutory Notice issued by the bank to the borrower. It states that the bank advanced the borrower KShs 16,197,426/= secured by a charge over title No. C.R. 1815/53 SUB 1897 (Original No. 289/61. Further that due to default the outstanding sum as at 17 th February 2020 was KShs 25,410,353.61 and the same continued to accrue interest at the rate of 1.92% per month and a penal interest of 1.5% per month over and above the normal interest until payment in full.
39. On 28 th July 2020 under Ref: RMB/0051004000217/07/2020 (I believe the second number refers to the account number), and referring to the application dated 15 th July 2020 the bank offered the borrower a term loan facility of KShs 22,900,000/=. I have noted the terms of these letters of offer, some of them referring to the fact that the facility will be secured by the existing first legal of KShs 15,000,000/= over title No. C.R. 1815/53 subdivision 1897 (Original No. 289/61) registered in favour of Rafiki Microfinance Limited. The amount of the loan facility was amended on 13 th August 2020 through letter refer No. RMB/0051004000217/08/2020 to be KShs 23,684,453/=. In the later letter, the outstanding amount of the loan was indicated as KShs 27,305,500/= as at 13 th August 2020. The borrower in its “replying affidavit” seems to contest the existence of the application letter dated 15 th July 2020. However, at this point I do not wish to dwell on that issue.
40. For the moment, what is of interest is the contest by the chargor that he was not made aware of the change of the loan amount from 15,000,000/= to KShs 23,684,453/= and that the security he had offered was never perfected to reflect the changed amount. I find that the 1 st defendant has not adequately responded to that issue. This issue is also better reserved for the main hearing.
41. I have read the supporting affidavit and I do now find, unlike in the first application, that the 2 nd applicant concedes that the loan amount was disbursed and that it is outstanding. He alleges that some KShs 3,800,000/= was made, which still leaves a substantial amount of the loan outstanding. There is no indication of further attempts to service the loan. Therefore, there is no dispute that the loan was and has always been in arrears. In the case of Mrao v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 the court considering this issue stated thus:
"The mortgagee will not be restrained from exercising his power of sale because the amount due is in dispute, or because the mortgagor has began a redemption action, or because the mortgagor objects to the manner in which the sale is being arranged. He will be restrained, however, if the mortgagor pays the amount claimed into court, that is, the amount which the mortgagee claims to be due to him, unless, on the terms of the mortgage, the claim is excessive.”(emphasis added). There is no dispute in this case that Mrao Ltd, (the appellant) borrowed more than Kshs 50m from First American Bank of Kenya Ltd, the first respondent, (First American) on the security of a legal charge over Plot LR No 714 Section IV Mainland North, Mombasa (the suit land) and a debenture dated 27th July, 1999 over its assets to cover the debt which at the time demand for repayment was made stood at Kshs 88m, but was by mutual consent reduced to Kshs 68m. Under a timetable agreed between the appellant and First American the sum of Shs 5m was to be paid within 4 weeks after the execution and registration of the security thus reducing the ceiling under the debenture to Shs 63m.”
42. Just as in the earlier application made by the 1 st defendant, this court finds that indeed the 1 st defendant’s power of sale has arisen and it should be exercised. However, the documentation of this loan by the 1 st defendant is so untidy that it is not possible to establish at this interlocutory stage on the copies documents supplied that the outstanding amount is as claimed KShs 47,067.558.37 in the statutory notice dated 21 st February 2025. That, as was found in the earlier application, is not a ground to stop the 1 st defendant in exercising its statutory power of sale. The court cannot sanction a process that has no certainty on its ending.
43. For that reason, I am constrained to hold that whereas I find no reason to restrain the 1 st defendant from exercising its statutory power of sale of the charged property, the same can only be exercised over what is certain, the initial loan advanced of KShs 15 million, the interest accrued thereon as per the terms of the contract and the law and charges incurred in recovery of the same.
44. The statutory notice dated 21 st February 2025 refers to a loan advanced of KShs 23,717,048/= secured by a charge over title No. C.R. 1815/53 SUB 1897 (Original No. 289/61). The charge however shows that the secured loan was a principal sum of KShs 15,000,000/= and interest, cost, expenses and charges as explained in the document which made it KShs 16,197,426/=. The Guarantee signed by the 2 nd defendant/applicant herein dated 6 th September 2018 and for which the property the subject of the charge was offered as security for the loan is for a sum of KShs 15,000,000/=. Clause 2 on “Limitation of Liability,” which is repeated as the last clause in the Guarantee document provides that the liability of the Guarantor shall be limited to the principal sum of KShs 15,000,000/= as the maximum principal amount to which shall be added interest, fees, commission, costs and expenses as provided in the guarantee instrument. This argument is in line with the cases of Rajnikantkhetshi Shah v Habib Bank A.G. Zurich [2016] eKLR and Kolaba Enterprises Ltd v Shamshudin Hussein Varvani & another [2015] eKLR which were then followed in Shah & another v Fidelity Commercial Bank Limited & 2 others [2022] KEHC 10743 (KLR) .
45. However, since the 1 st defendant seems either reluctant or not in any hurry to do so, this court can only allow it to realise the security to the extent that is not contested. I have stated above that the highest amount of loan shown to have been outstanding on the security of the charge for KShs 15,000,000/= was KShs 27,305,500/= as at 13 th August 2020. This is a sum that cannot be and has not been contested by the chargor and the same is recoverable by realization of the security.
46. Consequently, on the basis of there being no dispute that the loan is in arrears, the applicant’s objection to the 1 st respondent’s exercise of its power of sale does not have merit. The plea that the failure to service the loan by the 1 st plaintiff was not deliberate but that it was caused by the 2 nd defendant’s failure to pay for contractual services rendered is immaterial to the application.
47. The 1 st applicant also contends that the property has been undervalued with a view to have it disposed of fraudulently. In the previous application, the plaintiffs had put the market value of the charged property as KShs 125 million as per a valuation report dated 7 th February 2024 by G.K. Mutugi of Wyco Valuers Co. On its part the 1 st respondent had provided a valuation report by Accurate Valuers Ltd dated 12 th July 2023 which gave the open market value of KShs 20 million and forced sale value of KShs 15 million. It has now provided a valuation report by Liaison Valuers dated 23 rd September 2025 showing that the value of the property as at that sate was KShs 30,000,000/= with a forced sale value of KShs 22,500,000 assigned to it. The applicant herein has not provided any new report prepared after the ruling of this court. All the same, I note that the value of the property given by the bank has risen from KShs 20,000,000/= (with a forced sale value of KShs 15 million) to KShs 30 million in the latest report (with a forced sale value of KShs 22.5 million). The value has risen by KShs 10 million within a period of just about two years. This I find to be a significant disparity that needs explanation which has not been provided by the 1 st respondent yet the latest report, just as the previous one shows that there is no improvement on the property by way of developments thereon or on the properties adjacent thereto or even the infrastructure.
48. Under section 97 of the Land Act, a charge owes a duty of care to the chargor and any guarantor to obtain the best price reasonably obtainable at the time of sale. The said section provides as is relevant as follows:
(1) A chargee who exercises a power to sell the charged land, including the exercise of the power to sell in pursuance of an order of a court, owes a duty of care to the chargor, any guarantor of the whole or any part of the sums advanced to the chargor, any chargee under a subsequent charge or under a lien to obtain the best price reasonably obtainable at the time of sale.
(2)
[...truncated]
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL CASE NO. E004 OF 2024
(Coram: Andayi W. F., J.)
END TO END LIMITED…………………….............................1 ST PLAINITFF/APPLICANT
SAMMY ANDREW MATANO……………............................2 ND PLAINTIFF/APPLICANT
VERSUS
RAFIKI MICRO-FINANCE LIMITED........................1 ST DEFENDANT/RESPONDENT
COUNTY GOVERNMENT OF KWALE...................2 ND DEFENDANT/RESPONDENT
RULING
1. The application herein dated 3 rd December 2025 is the second one seeking an injunction against the 1 st defendant to restrain it from selling, disposing of and/or dealing with the property known as LR No. MN/V/1897 (C.R. 62381) situated at Bonje area, Mazeras Sub-County, Kilifi County pending the hearing and determination of the suit. End to End Limited, the 1 st plaintiff is the borrower; Sammy Andrew Matano, the 2 nd plaintiff is the chargor and guarantor of the loan borrowed by the 1 st plaintiff while the 1 st defendant, Rafiki Microfinance Limited is the lender and chargee.
2. On 18 th February 2025, this court issued orders on the application in the following terms:
a. The 1 st respondent shall render to the applicants a full statement of account of the loan in issue in accordance with the stipulated terms of the loan agreement within 30 days from the date hereof and thereafter comply with the provisions of section 96(2) of the Land Act (Cap. 280) Laws of Kenya by issuing the requisite notices to sell the suit property.
b. A conditional temporary injunction restraining the proposed sale of the suit property is hereby issued pending the fulfilment of the condition in (a) above and that upon the fulfilment of the said condition the conditional temporary injunction shall stand vacated.
c. The 1 st respondent shall bear the costs of this application and also pay the auctioneers charges so far.
3. The 2 nd applicant, Sammy Andrew Matano has come back to this court through a Notice of Motion dated 3 rd December 2025 seeking an order of temporary injunction to restrain the 1 st defendant its servants, employees and agents from advertising, purporting to advertise, selling by either private treaty or public auction or in any other way purporting to sell, disposing of and/or dealing with the property known as LR No. MN/V/1897 (C.R. 62381) situated at Bonje area, Mazeras, Kilifi pending the hearing and determination of the suit. Secondly that the plaintiffs be allowed by this court after complete audit of the loan statement and clear balance agreed between the 1 st defendant and the plaintiffs to get buyer and sell the said property and pay off the outstanding loan balance. Finally, that the costs be awarded to the plaintiffs.
4. The applicant herein was part of the previous application which was however principally argued by the 1 st plaintiff End-to-End Limited as the borrower.
5. The application is brought under Order 40 of the Civil Procedure Rules, 2010.
6. The grounds in support of the application are set out on the face thereof and expounded in the supporting affidavit sworn on 3 rd December 2025 and a supplementary affidavit sworn on 31 st March 2026 by Sammy Andrew Matano, the 2 nd plaintiff/applicant. The application is further supported by the replying affidavit of Abdirahman Mohamud Abdow, a director of the 1 st plaintiff End to End Limited sworn on 21 st January 2026.
7. The grounds are that the applicant is the registered owner of the subject property which he had charged to the 1 st defendant as security for loan of KShs 15,000,000/= granted to the 1 st plaintiff End-to-End Ltd. Both plaintiffs depose in their respective affidavits that the 1 st defendant has scheduled the property for sale on 8 th December 2025 (now past) but neither of the plaintiffs was served with the mandatory 90-day notice under section 90(1) of the Land Act nor the 40-day mandatory notice under section 96(2) of the Land Act but is instead improperly relying on a date contained in redemption notice which was belatedly and irregularly served upon the defendant (sic) the loan borrower, without complying with the orders issued by this court on 19 th February 2025. The applicant contends that for that reason, the defendant’s statutory power of sale has not arisen and therefore the intended auction is illegal, premature and void ab initio.
8. The applicant deposes that contrary to the court’s orders issued on 19 th February 2025, the 1 st defendant has never supplied the plaintiffs with the loan statement. He deposes in the supplementary affidavit that this court ordered that the 1 st defendant supplies the plaintiffs with “audited” statement of loan balance before proceeding with the intended advertisement and sale of the suit property. Reference to “audited” statement of loan in the supplementary affidavit is misleading because this court did not say that the statements of loan account were to be audited.
9. The grounds allege further that previously on 9 th December 2023, the 1 st defendant served a redemption notice with a highly exaggerated outstanding loan balance of KShs 75,067,558.37 which the plaintiffs contested and this has since been reduced to KShs 48,033,956.66 (KShs 47,067.558.37 as per the affidavit of Abdirahman Mohamed Abdow) and that the 1 st defendant has refused to explain the disparity, an indication of fraud on the part of the 1 st defendant.
10. The applicant deposes that other than the charge registered on the property for the loan of KShs 15,000,000/= granted to the 1 st plaintiff by the 1 st defendant, of which the 1 st defendant repaid KShs 3,800,000/=, no further charge has been created upon the property.
11. The applicant deposes in the supplementary affidavit that he never executed any of the further charge as stated by the 1 st defendant in its replying affidavit and the further charge was never registered on the title nor duly executed by both parties and so he was not a party thereto nor was he aware of the same. He deposes further that the 1 st defendant has referred to a letter of offer dated 15 th July 2020 which letter is not annexed to the replying affidavit as alleged. According to the 2 nd plaintiff, the whereabouts of such a letter is unknown.
12. He deposes further that there was no disbursement or evidence of disbursement of the alleged further KShs 22,900,000/= to the plaintiff’s account and the same is not shown anywhere in the statements of account supplied by the 1 st defendant. According to the 2 nd plaintiff, the 1 st defendant unilaterally settled certain inter-bank obligations with other customers during a loan portfolio transfer between the banks, without the plaintiff’s consent or participation, and later sought to bind the plaintiff to those terms through fabricated documents.
13. Further that the 1 st defendant is relying upon misleading valuations of the property for the intended sale which have grossly undervalued and greatly depreciated it thereby breaching the 1 st defendants’ statutory duty of care towards the plaintiffs under section 97(1) and (2) of the Land Act. It is deposed that the plaintiffs have engaged their own valuation which reveals the extend of undervaluation. However, this court has not been shown any new valuation of the property made by the plaintiffs after the court’s ruling of 19 th February 2025 and if the 2 nd plaintiff is referring to any earlier valuation, the same was dealt with by this court in its said ruling.
14. The application therefore raises the following issues:
a. Failure by the 1 st respondent to supply the plaintiffs with the correct loan statement as ordered by this court on 19 th February 2026.
b. Failure by the 1 st respondent to issue proper statutory notices under sections 90(1) and 96(2) of the Land Act and instead relying on a redemption notice which was in any case irregularly served.
c. Undervaluation of the property with an intention to fraudulently dispose of the same,
15. The application is opposed by the 1 st respondent through a replying affidavit sworn on 23 rd February 2026 by Robert Kirui, the manager, debt recovery unit who deposes that the application does not meet the threshold for granting the reliefs sought.
16. The replying affidavit responds to each of the issues above raised by the applicant in the following way.
a. The bank advanced to the 1 st plaintiff a sum of KShs 15,000,000/= secured by a first legal charge dated 6 th September 2018 upon property L.R. No. MN/V/1897 (C.R. 62381).
b. The 2 nd plaintiff/applicant herein provided the bank with a guarantee/indemnity dated 6 th September 2018 for the sum of KShs 15,000,000/=.
c. The bank was to make advances/loans/financial facilities from time to time to the borrower at the request of the chargor (emphasis in italics by this court)
d. The amount was to be repaid by the borrower and chargor jointly and severally on the 7 th day after the date of the charge.
e. The bank disbursed KShs 15,000,000/= to the 1 st plaintiff’s account No. 0051004000217. According to the bank statement provided by the 1 st defendant as annexure “RK 3” for the said account in the name of End-to-End Ltd, although it is indicated to be for the period 1 st November 2017 to 30 th November 2018, the transaction entries in the statement provided start on 4 th September 2018 and end on 8 th November 2018 without balancing off the account as having been closed for any particular period. There are two more statements of account annexed to the replying affidavit.
i. There is the statement marked “RK 7” in the name of End to End Limited, account No. 0051510000051 indicated to be for the period 29 th September 2017 to 26 th February 2024. The transactions therein start on 14 th August 2020 showing loan disbursed of KShs 23,717,048. The next transaction is recorded one year later on 14 th August 2021 as Interest Debit: August 2021, KShs 5,454,921.05 On the same date there is an entry of “loan repayment A/C 0051004000217 with a credit entry of KShs 0.55 making the debit balance of KShs 29,171,968.50. The statement ends with an entry of a debit balance of KShs 80,461,732.45) on 1 st January 2024.
ii. The other statement is marked “RK 9” in the name of End to End Limited for account No. 0051510000051 indicated thereon to be for the period 1 st January 2000 to 18 th December 2024. It is the same statement as (i) above only that it captures the transactions that came after 1 st January 2024.
f. It is deposed that the Plaintiffs failed to service the loan leading to arrears of KShs 25,410,353.61.
g. The 1 st plaintiff approached the bank through a letter dated 15 th July 2020 for an additional facility of KShs 22,900,000/= to be secured by the first legal charge of KShs 15,000,000/=. There is however no indication that the 2 nd plaintiff was part of this request as was required as per the terms of the charge.
h. The 1 st defendant deposes that the sum of KShs 23,717,048/= was disbursed as per the second bank statement discussed in (e)(i) above.
17. On the allegation that the bank has failed to comply with the orders of the court, the deponent deposes that the bank indeed complied by providing to the plaintiffs’ advocates then on record the full statement of account of the loan and issued the requisite notices to the borrower, the chargor/guarantor, and the spouse of the chargor/guarantor. The manager has annexed to the replying affidavit copies of the bank statements supplied and the relevant notices as deposed.
18. The bank, in exercise of its statutory power of sale, then issued instructions to Five Eleven Traders & Auctioneers to sell the suit property. The said auctioneers issued and duly served a redemption notice to the borrower and the chargor and the public auction was scheduled for 22 nd December 2025 and not 8 th December 2025 as deposed by the applicant in his supporting affidavit.
19. The 1 st defendant deposes further that the bank conducted another valuation of the property through Liaison Valuers Ltd and a valuation report dated 17 th September 2025 is annexed to the affidavit.
20. In view of the foregoing, the 1 st defendant deposes that the applicant has not met the conditions for grant of an injunction and has come to court with unclean hands and so is not deserving of the equitable remedy of injunction.
21. The application was argued by way of written submissions supported by authorities filed by learned counsels for the 1 st plaintiff, End-to-End Ltd and the 1 st respondent/bank. Despite being the applicant, the 2 nd plaintiff Sammy Andrew Matano has not filed submissions on the application. The 2 nd defendant, County Government of Kwale has not participated in the proceedings thus far.
22. The 1 st plaintiff submits that it is the applicant in the application dated 3 rd December 2025 and that it filed a supporting affidavit. That is not correct because the applicant is the 2 nd plaintiff and the 1 st plaintiff filed a replying and not supporting affidavit. Not unless the 1 st plaintiff wishes the court to understand that it was only using the 2 nd plaintiff’s name as a ploy to front the application when in fact it was the one that filed it.
23. The 1 st plaintiff submits that there are two issues for determination:
a. Whether or not the court should issue a temporary injunction pending the hearing and determination of the suit.
b. Whether the court should order an audit of the loan account as a condition precedent to the exercise of the the 1 st defendant’s statutory power of sale.
24. The bank argued the application on two fronts, which are:
a. Whether the 1 st defendant complied with the orders of this court issued on 9 th February 2026.
b. Whether the and plaintiff’s application dated 3 rd December 2025 has merit.
25. I have considered the application and the response thereto by the 1 st respondent as well as the submissions by learned counsels. The main issue for determination in this application is whether the 1 st respondent complied with this court’s orders issued on 19 th February 2025 and if so, it can proceed with the exercise of its power of sale and if not whether the applicant has thus satisfied the conditions for the issuance of temporary injunction.
26. It is discernible from the affidavits filed by the parties that Sammy Andrew Matano the 2 nd applicant is the registered owner of the charged property and a guarantor of a loan of KShs 15 million advanced to the borrower, the 1 st applicant by the bank/the 1 st respondent on or about 6/9/2028. The 2 nd applicant offered his subject parcel of land L.R. No. MN/V/1897 (C.R. 62381) as security for the loan whereby a legal charge was created over the property in favour of the bank.
27. The 2 nd plaintiff/applicant herein argues that the 1 st defendant has not complied with the orders of this court directing it to render to the applicants full statements of account of the loan in issue in accordance with the stipulated terms of the loan agreement within 30 days from the date of the ruling. The 1 st defendant on its part argues that it did provide the loan statements as directed by the court.
28. The 1 st defendant has annexed to the replying affidavit various bank statement for End to End Limited.
29. There is the statement for account No. 0051004000217, for End to End Ltd marked as “RK 3” indicated to be for the period 1 st November 2017 to 30 th November 2018 although the transaction entries are captured from 4 th September 2018 to 8 th November 2018. From this statement, the bank disbursed the sum of KShs 15,000,000/= to the 1 st plaintiff’s account No. 0051004000217 on 15 th September 2018. The entries end on 8 th November 2018 without balancing off the account as having been closed for any particular period.
30. There is the statement marked as “RK 9” for A/C No. 0051510000051 for the period 1 st January 2000 to 18 th December 2024. The transaction entries commenced on 14 th August 2020 and ended on 13 th August 2024. I have seen among the plaintiffs’ documents filed in court a copy of a certificate of incorporation No. C. 138579 for the 1 st plaintiff End to End Limited showing its date of incorporation as 24 th April 2007. I fail to understand how the bank statement relating to the 1 st plaintiff would then start running as from 1 st January 2000. I find this to be untidiness in the bank’s documentation with respect to the account the subject of this case which needs to be cleaned in order for the records to be clear for purpose.
31. There is the statement marked “RK 7” in the name of End to End Limited, account No. 0051510000051 indicated to be for the period 29 th September 2017 to 26 th February 2024. The transactions therein start on 14 th August 2020 showing loan disbursed of KShs 23,717,048. The next transaction is recorded one year later on 14 th August 2021 as Interest Debit: August 2021, KShs 5,454,921.05. On the same date there is an entry of “loan repayment A/C 0051004000217 with a credit entry of KShs 0.55 making the debit balance of KShs 29,171,968.50. The statement ends with an entry of a debit balance of KShs 80,461,732.45) on 1 st January 2024.
32. The other statement is marked “RK 9” in the name of End to End Limited for account No. 0051510000051 indicated thereon to be for the period 1 st January 2000 to 18 th December 2024. It is the same statement as in 30 above only that it captures the transactions that came after 1 st January 2024.
33. I find that what the 2 nd plaintiff is contesting is what is captured in the bank statement for account No. 0051510000051. Whereas this statement is properly balanced off and closed, as observed above the statement for account No. 0051004000217, which is the loan account that the 2 nd plaintiff acknowledges is aware of and for which he offered security of the charge, is not balanced and closed off for any specified period. It is left hanging, meaning that the account is open and running. However, the entries for the transactions after 8 th November 2018 are not provided. In view of that, this court finds that that bank statement is incomplete.
34. The two main complaints raised by the 2 nd defendant/applicant/chargor in this case with respect to the loan advanced to the 1 st defendant are that first, he was not party to the loan or credit facility being raised from 15 million as captured in the bank statement No. 0051004000217 to KShs 23,717,048/=, which is captured in the bank statement for account No. 0051510000051. Secondly, that the bank initially indicated to the chargor in the redemption notice dated 9 th December 2023 from Keysian Auctioneers that the outstanding amount was KShs 75,067,558.37 and without explanation the same was reduced to KShs 47, 899,816.66 in the bank’s statutory notice to the chargor on 21 st February 2026 after the court’s ruling. It is in the same letter that the bank indicates that it lent the borrower KShs 23,717,048 secured by a charge over title No. C.R. 1815/53 SUB 1897 (Original No. 289/61). The issue of correct statements of account is therefore important to this application.
35. The bank deposes that the 1 st applicant failed to service the loan as agreed leading to the accumulated arrears of KShs 25,410,353.61. Subsequently, the borrower approached the bank and the bank extended an additional facility of KShs 22,900,000/= through a letter dated 28 th July 2020 There is a supplementary letter of offer dated 13 th August 2020 showing that the maximum amount that the borrower could draw under the facility was KShs 23,684,453/= while the statement of account shows that the loan disbursed on 14 th August 2020 was KShs 23,717,048/=. This amount was to be applied for loan consolidation and restructure.
36. I have looked at the statement of account annexed to the replying affidavit and I note that as at 31 st July 2024, the balance on the account was a debit of KShs 99,002,530.71. On 31 st August 2024 there was reversal of penal interest of KShs 51,102,715.05 which made the closing balance as at 18 th December 2024 to be KShs 47,899,816.66 which is the sum claimed in the statutory notice dated 21 st February 2026. Since this calculation has not been challenged by the chargor by offering any other statement of account with different figures, I would find that it prima facie at this interlocutory stage explains the disparity between the initial demand for KShs 75,067,558.37 and the new demand of KShs 47,899,816.66.
37. However, it is apparent from the account number indicated on the statement as No. 0051510000051 that the calculation of this outstanding balance is based on the revised loan to the borrower of KShs 23,717,048 and not the initial KShs 15,000,000/= (the proper figure being KShs 16,197,426/= after loan processing charges were loaded thereon). The sticking point is that the chargor/applicant herein maintains that only the sum of KShs 15,000,000/= was secured by the charge upon his property.
38. Annexure “RK 4”, was the First Statutory Notice issued by the bank to the borrower. It states that the bank advanced the borrower KShs 16,197,426/= secured by a charge over title No. C.R. 1815/53 SUB 1897 (Original No. 289/61. Further that due to default the outstanding sum as at 17 th February 2020 was KShs 25,410,353.61 and the same continued to accrue interest at the rate of 1.92% per month and a penal interest of 1.5% per month over and above the normal interest until payment in full.
39. On 28 th July 2020 under Ref: RMB/0051004000217/07/2020 (I believe the second number refers to the account number), and referring to the application dated 15 th July 2020 the bank offered the borrower a term loan facility of KShs 22,900,000/=. I have noted the terms of these letters of offer, some of them referring to the fact that the facility will be secured by the existing first legal of KShs 15,000,000/= over title No. C.R. 1815/53 subdivision 1897 (Original No. 289/61) registered in favour of Rafiki Microfinance Limited. The amount of the loan facility was amended on 13 th August 2020 through letter refer No. RMB/0051004000217/08/2020 to be KShs 23,684,453/=. In the later letter, the outstanding amount of the loan was indicated as KShs 27,305,500/= as at 13 th August 2020. The borrower in its “replying affidavit” seems to contest the existence of the application letter dated 15 th July 2020. However, at this point I do not wish to dwell on that issue.
40. For the moment, what is of interest is the contest by the chargor that he was not made aware of the change of the loan amount from 15,000,000/= to KShs 23,684,453/= and that the security he had offered was never perfected to reflect the changed amount. I find that the 1 st defendant has not adequately responded to that issue. This issue is also better reserved for the main hearing.
41. I have read the supporting affidavit and I do now find, unlike in the first application, that the 2 nd applicant concedes that the loan amount was disbursed and that it is outstanding. He alleges that some KShs 3,800,000/= was made, which still leaves a substantial amount of the loan outstanding. There is no indication of further attempts to service the loan. Therefore, there is no dispute that the loan was and has always been in arrears. In the case of Mrao v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 the court considering this issue stated thus:
"The mortgagee will not be restrained from exercising his power of sale because the amount due is in dispute, or because the mortgagor has began a redemption action, or because the mortgagor objects to the manner in which the sale is being arranged. He will be restrained, however, if the mortgagor pays the amount claimed into court, that is, the amount which the mortgagee claims to be due to him, unless, on the terms of the mortgage, the claim is excessive.”(emphasis added). There is no dispute in this case that Mrao Ltd, (the appellant) borrowed more than Kshs 50m from First American Bank of Kenya Ltd, the first respondent, (First American) on the security of a legal charge over Plot LR No 714 Section IV Mainland North, Mombasa (the suit land) and a debenture dated 27th July, 1999 over its assets to cover the debt which at the time demand for repayment was made stood at Kshs 88m, but was by mutual consent reduced to Kshs 68m. Under a timetable agreed between the appellant and First American the sum of Shs 5m was to be paid within 4 weeks after the execution and registration of the security thus reducing the ceiling under the debenture to Shs 63m.”
42. Just as in the earlier application made by the 1 st defendant, this court finds that indeed the 1 st defendant’s power of sale has arisen and it should be exercised. However, the documentation of this loan by the 1 st defendant is so untidy that it is not possible to establish at this interlocutory stage on the copies documents supplied that the outstanding amount is as claimed KShs 47,067.558.37 in the statutory notice dated 21 st February 2025. That, as was found in the earlier application, is not a ground to stop the 1 st defendant in exercising its statutory power of sale. The court cannot sanction a process that has no certainty on its ending.
43. For that reason, I am constrained to hold that whereas I find no reason to restrain the 1 st defendant from exercising its statutory power of sale of the charged property, the same can only be exercised over what is certain, the initial loan advanced of KShs 15 million, the interest accrued thereon as per the terms of the contract and the law and charges incurred in recovery of the same.
44. The statutory notice dated 21 st February 2025 refers to a loan advanced of KShs 23,717,048/= secured by a charge over title No. C.R. 1815/53 SUB 1897 (Original No. 289/61). The charge however shows that the secured loan was a principal sum of KShs 15,000,000/= and interest, cost, expenses and charges as explained in the document which made it KShs 16,197,426/=. The Guarantee signed by the 2 nd defendant/applicant herein dated 6 th September 2018 and for which the property the subject of the charge was offered as security for the loan is for a sum of KShs 15,000,000/=. Clause 2 on “Limitation of Liability,” which is repeated as the last clause in the Guarantee document provides that the liability of the Guarantor shall be limited to the principal sum of KShs 15,000,000/= as the maximum principal amount to which shall be added interest, fees, commission, costs and expenses as provided in the guarantee instrument. This argument is in line with the cases of Rajnikantkhetshi Shah v Habib Bank A.G. Zurich [2016] eKLR and Kolaba Enterprises Ltd v Shamshudin Hussein Varvani & another [2015] eKLR which were then followed in Shah & another v Fidelity Commercial Bank Limited & 2 others [2022] KEHC 10743 (KLR) .
45. However, since the 1 st defendant seems either reluctant or not in any hurry to do so, this court can only allow it to realise the security to the extent that is not contested. I have stated above that the highest amount of loan shown to have been outstanding on the security of the charge for KShs 15,000,000/= was KShs 27,305,500/= as at 13 th August 2020. This is a sum that cannot be and has not been contested by the chargor and the same is recoverable by realization of the security.
46. Consequently, on the basis of there being no dispute that the loan is in arrears, the applicant’s objection to the 1 st respondent’s exercise of its power of sale does not have merit. The plea that the failure to service the loan by the 1 st plaintiff was not deliberate but that it was caused by the 2 nd defendant’s failure to pay for contractual services rendered is immaterial to the application.
47. The 1 st applicant also contends that the property has been undervalued with a view to have it disposed of fraudulently. In the previous application, the plaintiffs had put the market value of the charged property as KShs 125 million as per a valuation report dated 7 th February 2024 by G.K. Mutugi of Wyco Valuers Co. On its part the 1 st respondent had provided a valuation report by Accurate Valuers Ltd dated 12 th July 2023 which gave the open market value of KShs 20 million and forced sale value of KShs 15 million. It has now provided a valuation report by Liaison Valuers dated 23 rd September 2025 showing that the value of the property as at that sate was KShs 30,000,000/= with a forced sale value of KShs 22,500,000 assigned to it. The applicant herein has not provided any new report prepared after the ruling of this court. All the same, I note that the value of the property given by the bank has risen from KShs 20,000,000/= (with a forced sale value of KShs 15 million) to KShs 30 million in the latest report (with a forced sale value of KShs 22.5 million). The value has risen by KShs 10 million within a period of just about two years. This I find to be a significant disparity that needs explanation which has not been provided by the 1 st respondent yet the latest report, just as the previous one shows that there is no improvement on the property by way of developments thereon or on the properties adjacent thereto or even the infrastructure.
48. Under section 97 of the Land Act, a charge owes a duty of care to the chargor and any guarantor to obtain the best price reasonably obtainable at the time of sale. The said section provides as is relevant as follows:
(1) A chargee who exercises a power to sell the charged land, including the exercise of the power to sell in pursuance of an order of a court, owes a duty of care to the chargor, any guarantor of the whole or any part of the sums advanced to the chargor, any chargee under a subsequent charge or under a lien to obtain the best price reasonably obtainable at the time of sale.
(2)
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