A. THE PLAINTIFF’S NOTICE OF MOTION.
1. The Plaintiff’s notice of motion application dated 29th June, 2025 is expressed to be brought under Order 40 of the Civil Procedure Rules and Section 1A, 1B, 3A and 63 of the Civil Procedure Act and all enabling provisions of the law and seeks the following orders:
a. [Spent].
b. THAT pending the hearing and determination of this application inter parties and the main suit, this Honourable Court be pleased to grant temporary injunction restraining the Defendants herein from disposing, alienating, seizing, soliciting or advertising for sale and/or in any manner dealing with the land Parcels Title numbers East Alego/Mur Ngiya/1633 & 1634, East Alego/Mur Ngiya 1698, East Alego/Mur Ngiya/1789 and Kisumu/Manyatta A/3495.
c. An order do issue that the Defendants forthwith withdraw the various notices to sell and/or auction of the properties listed in (b) above and halt any auction process pending the hearing and determination of this suit.
d. THAT pending the hearing and determination of this application inter parties and the main suit, this Honourable Court be pleased to issue an order to Credit Bank to provide the plaintiff with letter of offer, statement of accounts and loan agreement for the outstanding loan.
e. THAT the costs of this application be provided for.
2. The grounds upon which the application is premised are that the Plaintiff obtained a loan facility of Ksh.11,000,000/- from the 1st Defendant, which she has continued to service, save for a default period of four months. The Plaintiff contends that the outstanding loan balance, which has since risen to approximately Ksh.21,000,000/-, was intended to run for a further period of four years.
3. The Plaintiff asserts that the intended sale of her properties by way of public auction is unlawful, illegal and irregular on the basis that the Defendants have failed to comply with the mandatory statutory requirements and due process of the law preceding the exercise of the power of sale. In particular, the Plaintiff contends that she was not served with the requisite statutory notices or notified of the intended auction.
4. The Plaintiff states that she only became aware of the intended auction through information received from her husband, who informed her that her properties were scheduled for auction on 30th June, 2025. She further avers that on 28th June, 2025, she received a telephone call from the 1st Defendant’s Manager informing her that the properties were yet to be auctioned, but the Manager declined to furnish her with the gazette notice relating to the intended sale.
5. The Plaintiff contends that the 1st Defendant has neither served her with the requisite notices nor communicated the intended auction to her, thereby rendering the proposed sale unlawful and liable to be stopped by an order of this Court.
6. The Plaintiff expresses apprehension that unless the orders sought are granted, her properties may be sold by the 2nd Defendant – an auctioneer – thereby occasioning her substantial and irreparable loss and damage which may not be adequately compensated by an award of damages.
7. The Plaintiff therefore urges that the intended auction and any consequential attachment or disposal of the properties be stayed pending the hearing and determination of the suit. She maintains that the application has been brought in good faith, without unreasonable delay, and that it is in the interests of justice that the orders sought be granted.
B. THE SUPPORTING AFFIDAVIT.
8. The application is supported by the Plaintiff’s affidavit sworn on 29th June, 2025, in which she deposes that together with her husband, they obtained a loan facility of Ksh.11,000,000/- from the 1st Defendant which she has continued to service.
9. The Plaintiff deposes that although she defaulted in repayment for a period of four months, she has continued making payments towards the loan and that the outstanding amount has since risen to approximately Ksh.21,000,000/-. She states that the repayment period for the facility has not lapsed and that there are still four years remaining before the loan term expires.
10. The Plaintiff contends that the intended sale of her properties by way of public auction is unlawful and irregular as the Defendants have failed to comply with the mandatory statutory requirements governing the exercise of the power of sale. She specifically deposes that she was not served with the requisite statutory notices or formally notified of the intended auction.
11. The Plaintiff states that she only became aware of the intended auction on 28th June, 2025 through information received from her estranged husband, who informed her that her properties were scheduled for auction on 30th June, 2025 pursuant to a notice. She further asserts that the 1st Defendant did not issue her with any formal written notification regarding the intended sale.
12. The Plaintiff further deposes that the properties intended for sale were valued at amounts substantially higher than the alleged amount in default and that the 1st Defendant was acting hastily by seeking to recover the entire outstanding principal sum despite the loan repayment period not having expired. She urges that the 1st Defendant be compelled to provide statements of accounts reflecting the loan repayments made and the loan agreement executed between the parties.
13. The Plaintiff states that her failure to meet the repayment obligations was occasioned by serious illness which required hospitalisation, but that she has since continued making payments in an effort to regularise the loan account.
14. The Plaintiff expresses apprehension that unless the orders sought are granted, her properties may be disposed of through the intended auction, thereby occasioning her irreparable loss and damage. She maintains that the application has been brought in good faith and without unreasonable delay, and urges the Court to grant the orders sought in the interest of justice.
C. THE DEFENDANTS’ REPLYING AFFIDAVIT.
15. In response to the application, the Defendants filed a replying affidavit sworn on 7th July, 2025 by Francis Wainaina Ngaruiya, the Head of Legal Services of the 1st Defendant, who deposes that the Plaintiff was, in or about June, 2018, granted credit facilities by the 1st Defendant in the sum of Ksh.22,000,000/- pursuant to a duly executed loan agreement and facility letter dated 12th June, 2018.
16. He states that the purpose of the facility was to take over existing facilities previously advanced to the Plaintiff by Sidian Bank amounting to Ksh.15,200,000/- and to provide additional funds for completion of construction works that were being undertaken by the Plaintiff and her husband on property known as Kisumu/Manyatta “A”/3495.
17. He deposes that the Plaintiff executed the loan agreement as borrower and guarantor, while her husband, James Ouma Odera, separately executed a guarantee and indemnity in favour of the 1st Defendant. He states that the loan facilities were secured by charges registered over various parcels of land belonging to the Plaintiff and her husband, and that the requisite consents, including spousal consents and Land Control Board consents, were duly obtained.
18. He asserts that the creation and registration of the charge instruments were lawful, regular and procedural, and that the Plaintiff was duly informed by an advocate of the terms and effect of the loan and charge documents, including the 1st Defendant’s statutory power of sale under the Land Act. He further contends that the Plaintiff confirmed her understanding of the said documents by executing the relevant certificates.
19. The deponent disputes the Plaintiff’s assertion that she is the owner or registered proprietor of land parcels East Alego/Mur Ng’iya/1634 and East Alego/Mur Ng’iya/1698, contending that the said properties belong to her husband and that she therefore lacks locus standi to challenge the intended sale of those properties.
20. He states that although the credit facilities were disbursed and utilised by the Plaintiff. she subsequently defaulted in repayment, resulting in arrears on the loan account. He deposes that as at 27th August, 2024, the outstanding amount stood at Ksh.21,548,120.59/-, while as at 5th June, 2025, the outstanding sum was Ksh.20,945,291.11/-. He states that the 1st Defendant thereafter commenced the process of recovery through realization of the securities provided.
21. The deponent denies the Plaintiff’s assertion that she was not supplied with statements of account and states that the 1st Defendant has consistently provided her with account information and statements in accordance with its banking obligations and customer care practices.
22. He further deposes that following the Plaintiff’s default, the 1st Defendant issued statutory notices under Section 90 of the Land Act on 27th August, 2024 through registered post to the Plaintiff and her husband. He states that upon continued default, the 1st Defendant instructed 2nd Defendant to proceed with realization of the securities, and that the auctioneers subsequently issued redemption notices and notifications of sale on 24th April, 2025 through personal service.
23. The deponent contends that the Plaintiff was aware of the existence of the charge, the default in repayment and the recovery process, and that her assertion that she only learnt of the intended auction through her husband is false and misleading. He maintains that the 1st Defendant was not required to await expiry of the loan repayment period before exercising its statutory power of sale following the Plaintiff’s default.
24. He states that the 1st Defendant complied with all legal requirements by commissioning a current valuation of the charged properties through Transcounty Valuers Limited and that the intended exercise of the statutory power of sale is therefore lawful, procedural and regular.
25. He denies that the 1st Defendant acted out of malice or with the intention of unfairly disposing of the Plaintiff’s properties, stating that the sale process was commenced solely for purposes of recovering monies advanced to the Plaintiff and which remain unpaid. He further states that the 1st Defendant had previously accommodated the Plaintiff by restructuring the loan facilities in May, 2022 and granting her an adjusted repayment schedule.
26. The deponent asserts that the Plaintiff’s alleged separation from her husband and illness do not excuse her failure to repay the loan, and that the allegations are unsubstantiated and intended to delay the recovery process. He maintains that the 1st Defendant’s right to exercise its statutory power of sale has crystallized and that the Plaintiff has not met the threshold for the grant of injunctive relief under the Land Act or the applicable principles governing injunctions.
27. He further contends that the balance of convenience favours the 1st Defendant, considering the outstanding indebtedness owed its depositors and shareholders and the expenses already incurred in the recovery process. He therefore urges that the application be dismissed with costs.
28. The Defendants additionally raises a preliminary objection that the present suit and application are sub judice on account of Siaya ELC No. E022 of 2025, James Ouma Odera v Credit Bank & Florence Akinyi Ohito, which the deponent states concerns the same loan transaction and properties and is still pending determination.
29. He states that in the said proceedings, James Ouma Odera claims ownership of certain parcels of land and alleges lack of knowledge of the loan and charge transactions, whereas the Plaintiff herein acknowledges that the loan facility and securities were undertaken together with her husband and with his knowledge and participation.
30. He therefore accuses the Plaintiff and her husband of dishonesty, misrepresentation and suppression of material facts, alleging that they have sought to frustrate the recovery process and abuse the court process. He maintains that the Plaintiff is undeserving of the orders sought and urges the Court to dismiss the application.
31. The Defendants further resist the application vide their grounds of opposition dated 14th July, 2025, which in precis are that the application and the suit as filed are substantively and procedurally defective, bad in law and fatally incompetent and are therefore undeserving of the Court’s consideration.
32. The Defendants further assert that the Plaintiff lacks the requisite locus standi to institute and maintain the proceedings in respect of land parcels known as East Alego/Mur Ng’iya/1634 and East Alego/Mur Ng’iya/1698, which they contend are not registered in her name.
33. The Defendants also reiterate that the present suit and application are sub judice, having regard to the pending proceedings in Siaya ELC Case No. E022 of 2025, which they state relate to the same subject matter and remain pending determination before the Environment and Land Court at Siaya.
34. The Defendants maintain that the Plaintiff has not established any sufficient, prima facie or valid grounds to justify the grant of the orders sought and urge the Court to dismiss the application.
35. In rejoinder, the Plaintiff filed a further affidavit that she swore on 24th July, 2025 in which she contends that she obtained a loan facility of Ksh.22,000,000/- from the 1st Defendant, which was repayable over a period of 84 months through monthly instalments of Ksh.406,674/-, with the repayment period extending to the year 2029.
36. The Plaintiff asserts that the loan repayment period had not expired and that the Defendants’ decision to proceed with the sale of the charged properties before the expiry of the agreed repayment period amounted to a breach of the loan agreement and denied her an opportunity to fulfil her contractual obligations.
37. She deposes that she had been diligent in servicing the loan until she fell ill and was hospitalised, a fact which was within the knowledge of the 1st Defendant. She contends that the Defendants ought to have demanded payment of the arrears arising from the default in monthly instalments rather than seek recovery of the entire loan amount before the expiry of the loan term.
38. The Plaintiff maintains that despite the 1st Defendant being in possession of her personal contact details, including her email address and telephone number, it neither served her with the statutory notices nor supplied her with statements of accounts until June, 2025, when she was informed of the intended auction scheduled for 30th June, 2025.
39. She challenges the Defendant’s assertion that the statutory notices were served through her former husband’s postal address, contending that they had separated and were living apart and that the 1st Defendant ought to have served her directly through the contact details in its possession. She therefore maintains that the alleged service of notices was invalid and incapable of supporting the intended auction.
40. The Plaintiff further contends that the 1st Defendant’s decision to contact her on 28th June, 2025 informing her of the intended auction was an afterthought, particularly after she had instructed her advocates to demand the production of the loan statements and statutory notices.
41. She alleges that the 1st Defendant had increased the interest rate on the loan, thereby making repayment difficult, and that although she had sought restructuring of the facility, the 1st Defendant was unwilling to address the matter. She states that her monthly repayments increased from approximately Ksh.400,000/- to Ksh.460,000/-.
42. The Plaintiff further deposes that she had previously secured a prospective purchaser for one of the charged properties, namely Kisumu/Manyatta “A”/3495, at a consideration of Ksh.21,000,000/-, who was willing to pay a deposit of Ksh.14,000,000/- when the arrears were only Ksh.1,000,000/-, but the 1st Defendant declined the proposal. She maintains that the 1st Defendant would not have suffered any prejudice since the title would only have been discharged upon payment of the purchase price in full.
43. The Plaintiff states that she has since recovered from her illness and is capable of resuming regular repayment of the loan. She undertakes to clear the outstanding arrears and accrued interest within the remaining loan period.
44. She disputes the valuation report relied upon by the Defendants, contending that it does not reflect the true market value of the charged properties. She asserts that an independent valuation would demonstrate that the properties are worth substantially more than the values indicated by the Defendants.
45. The Plaintiff contends that the sale of a single property would be sufficient to offset the outstanding loan balance and that the proposed auction of all five parcels of land is excessive, unreasonable and disproportionate. She maintains that the Respondent’s exercise of its statutory power of sale should be limited to what is necessary to recover the outstanding debt.
46. She maintains that she has established a prima facie case and that she stands to suffer irreparable harm incapable of adequate compensation by damages if the properties are sold and she is evicted from her home. She therefore asserts that the balance of convenience favours preservation of the properties pending determination of the application.
47. The Plaintiff disputes the Defendants’ contention that the matter is sub judice on account of Siaya ELC Case No. E022 of 2025. She contends that the two matters concern different parties and seek different reliefs, as the present proceedings relate to the legality of the intended auction arising from alleged non-compliance with statutory procedure, while the Siaya matter concerns a dispute between herself and her former husband over two matrimonial properties.
48. She further states that she instituted the present proceedings before she was served with pleadings in the Siaya matter and could not have anticipated that her former husband would institute separate proceedings seeking to restrain the sale of the two properties.
49. The Plaintiff maintains that she has locus standi in respect of the properties known as East Alego/Mur Ng’iya/1634 and East Alego/Mur Ng’iya/1698, despite the same being registered in her former husband’s name. She contends that the properties constitute matrimonial property acquired by her and that her former husband participated in and consented to the loan transaction and execution of the relevant security documents.
50. She asserts that the 1st Defendant cannot claim that she lacks sufficient interest in the said properties while at the same time acknowledging that she was the spouse of the registered owner and that both parties executed spousal consents in relation to the charged properties.
51. The Plaintiff therefore maintains that the issues raised in the application, including the validity of service of statutory notices and the propriety of the valuation, raise substantial questions for determination by the Court.
52. She reiterates that the application was filed without delay and urges the Court to grant the orders sought, including restraining the intended auction, directing an independent valuation of the properties and limiting any enforcement action to the sale of a single property sufficient to settle the outstanding loan balance.
D. THE PLAINTIFF’S SUBMISSIONS.
53. The Plaintiff submits that the present application seeks, inter alia, temporary injunctive orders restraining the Defendants from disposing of, alienating, advertising for sale or otherwise dealing with the charged properties pending the hearing and determination of the suit.
54. The Plaintiff submits that she has satisfied the principles for the grant of an interlocutory injunction as set out in Giella v Cassman Brown & Co. Ltd [1973] EA 358, namely, that she has established a prima facie case with a probability of success, that she stands to suffer irreparable harm which cannot adequately be compensated by damages, and that the balance of convenience favours the grant of the orders sought.
55. On whether she has established a prima facie case, the Plaintiff relies on the decision in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, where a prima facie case was described as a genuine and arguable case demonstrating that a right has apparently been infringed, thereby calling for a rebuttal from the opposing party.
56. The Plaintiff submits that although she obtained the loan facility, she only defaulted for a short period and that the 1st Defendant proceeded to instruct the 2nd Defendant to advertise and sell her matrimonial properties, which she contends are valued at approximately Ksh.45,000,000/-. She argues that the intended sale is premature since the repayment period of the loan had not expired.
57. The Plaintiff contends that the Defendants failed to comply with the requirements governing the sale of immovable property by auction under Sections 15 and 16 of the Auctioneers Act. She submits that the 2nd Defendant was required to issue and serve the requisite notification of sale, provide the statutory redemption period and publish a proper advertisement containing the relevant details of the intended auction.
58. The Plaintiff argues that the statutory notices and notification of sale were not served upon her but were allegedly served upon her husband, with whom she had separated. She submits that since she was a chargor and the 1st Defendant was in possession of her personal contact details, including her telephone number and email address, the Defendants ought to have served her directly.
59. The Plaintiff further submits that the 1st Defendant acted unfairly by increasing the interest rates, thereby frustrating her ability to repay the loan. She states that her failure to make payments was occasioned by serious illness and hospitalisation, which circumstances were known to the 1st Defendant.
60. The Plaintiff submits that she has therefore demonstrated a prima facie case with a probability of success on account of the alleged failure by the Respondents to comply with the statutory requirements preceding the exercise of the power of sale.
61. On irreparable harm, the Plaintiff submits that she stands to lose all her properties, including matrimonial property and her home, if the intended auction proceeds. She argues that such loss cannot adequately be compensated by an award of damages. Reliance is placed on J.M. Gichanga v Co-operative Bank of Kenya Ltd [2005] eKLR, where the Court recognized that damages may not always be an adequate remedy where there has been a breach of a legal right.
62. The Plaintiff further relies on Waithaka v Industrial and Commercial Development Corporation [2001] KLR 374 for the proposition that the possibility of damages being available does not automatically bar the grant of an injunction, as monetary compensation is not always an adequate substitute for the protection of legal rights.
63. The Plaintiff also relies on Joseph Siro Mosioma v Housing Finance Company of Kenya & 3 Others, Nairobi HCCC No. 265 of 2007, for the proposition that damages cannot be treated as a substitute for a clear breach of the law and that a party should not be compelled to accept damages in place of protection of a crystallised right.
64. The Plaintiff submits that if the Defendants are allowed to proceed with the sale of the properties, she will be left litigating in vain, and that the only effective remedy available to preserve the subject matter of the suit is the grant of an injunction.
65. On the balance of convenience, the Plaintiff submits that the Court is not in doubt as to the merits of the application, having demonstrated the failure by the Defendants to follow the prescribed statutory procedure. She argues that the balance of convenience favours preservation of the properties to enable her to continue fulfilling her repayment obligations.
66. In response to the objection on sub judice, the Plaintiff submits that the present suit is not sub judice by reason of Siaya ELC Case No. E022 of 2025, as she had filed the present proceedings before becoming aware of the existence of the Siaya matter. She contends that she could not have anticipated that her former husband would institute separate proceedings seeking injunctive relief over some of the properties.
67. The Plaintiff further submits that the Siaya proceedings relate only to two properties, namely East Alego/Mur Ng’iya/1634 and East Alego/Mur Ng’iya/1698, whereas the present suit concerns additional properties and raises issues relating to the legality of the intended auction and compliance with statutory procedure.
68. The Plaintiff argues that the parties and reliefs sought in the two matters are different and that the present suit is therefore properly before the Court. She relies on Attorney General & Another v Andrew Mwaura Githinji & Another [2016] eKLR for the proposition that a preliminary objection must raise a pure point of law and cannot be founded on disputed facts or matters requiring judicial discretion.
69. The Plaintiff therefore urges the Court to find that the application meets the threshold for the grant of an interlocutory injunction and to grant the orders sought, including restraining the Defendants from proceeding with the intended auction and awarding costs of the application to the Plaintiff.
E. THE DEFENDANTS’ SUBMISSIONS.
70. On their part, the Defendants submit that the Plaintiff’s application is unmerited and ought to be dismissed.
71. The Defendants submit that the Plaintiff’s claim is premised on the contention that she is the registered proprietor of all the suit properties, that she obtained a loan from the 1st Defendant repayable until 2029, that she only defaulted for a short period due to illness, and that the intended sale is unlawful for want of compliance with the statutory procedures. They contend that these assertions are incorrect and unsupported by evidence.
72. The Defendants submit that the Plaintiff obtained a loan facility of Ksh.22,000,000/- from the 1st Defendant, which was secured through duly executed and registered charge instruments over the relevant properties. They argue that the Plaintiff’s indebtedness and default are admitted and that the outstanding loan stood at Ksh.21,548,120.59/- as at 27th August, 2024 and Ksh.20,945,291.11/- as at 5th June, 2025.
73. The Defendants submit that the terms of the loan agreement and charge instruments did not permit the Plaintiff to repay the loan at her convenience until 2029 or shield her from recovery action upon default. They contend that the contractual terms expressly provided that the loan was repayable in monthly instalments of Ksh.406,674/- for a maximum period of 84 months and that any default in repayment would trigger recovery measures, including the exercise of the statutory power of sale.
74. The Defendants submit that the Plaintiff’s illness and alleged financial difficulties do not excuse her contractual obligations, particularly where the loan was secured by charged properties and the 1st Defendant’s right to realize the securities had crystallized upon default.
75. On the Plaintiff’s prayer for provision of the loan documents, statements of account and letter of offer, the Defendants submit that the prayer is misconceived and does not arise in an application for injunction. They contend that the Plaintiff did not demonstrate any unsuccessful attempt to obtain the documents from the 1st Defendant and, in any event, the documents had already been supplied and exhibited in the replying affidavit.
76. The Defendants submit that the 1st Defendant complied with all statutory and contractual requirements before commencing the realization process. They state that statutory notices under Section 90 of the Land Act were issued to the Plaintiff and her husband by registered post on 27th August, 2024, and that upon continued default, the 2nd Defendant issued redemption notices and notifications of sale on 24th April, 2025 pursuant to Section 96(2) of the Land Act through personal service.
77. The Defendants contend that the Plaintiff’s assertion that she was unaware of the intended auction is false, noting that she admitted in her application that she became aware of the intended sale and had actual knowledge of the recovery process. They submit that the alleged failure to serve notices is therefore unsupported and that the intended exercise of the statutory power of sale is lawful, procedural and regular.
78. The Defendants further submit that the 1st Defendant commissioned a current valuation of the charged properties through Transcounty Valuers Limited and thereby complied with the applicable legal requirements. They contend that it acted in exercise of its contractual and statutory rights and not out of malice, but in order to recover monies advanced to the Plaintiff and owed to its shareholders and depositors.
79. The Defendants submit that the 1st Defendant had been accommodating towards the Plaintiff and had previously restructured the loan facility in May, 2022, thereby granting her additional time and an adjusted repayment schedule. They therefore argue that the allegation that it acted hastily or unfairly is without basis.
80. The Defendants further submit that the Plaintiff lacks locus standi in respect of land parcels known as East Alego/Mur Ng’iya/1634 and East Alego/Mur Ng’iya/1698, which they contend are registered in the name of her husband, James Ouma Odera. They argue that the said properties are the subject of pending proceedings in Siaya ELC Case No. E022 of 2025 and that the Plaintiff cannot seek injunctive orders over properties in which she ha
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1. The Plaintiff’s notice of motion application dated 29th June, 2025 is expressed to be brought under Order 40 of the Civil Procedure Rules and Section 1A, 1B, 3A and 63 of the Civil Procedure Act and all enabling provisions of the law and seeks the following orders:
a. [Spent].
b. THAT pending the hearing and determination of this application inter parties and the main suit, this Honourable Court be pleased to grant temporary injunction restraining the Defendants herein from disposing, alienating, seizing, soliciting or advertising for sale and/or in any manner dealing with the land Parcels Title numbers East Alego/Mur Ngiya/1633 & 1634, East Alego/Mur Ngiya 1698, East Alego/Mur Ngiya/1789 and Kisumu/Manyatta A/3495.
c. An order do issue that the Defendants forthwith withdraw the various notices to sell and/or auction of the properties listed in (b) above and halt any auction process pending the hearing and determination of this suit.
d. THAT pending the hearing and determination of this application inter parties and the main suit, this Honourable Court be pleased to issue an order to Credit Bank to provide the plaintiff with letter of offer, statement of accounts and loan agreement for the outstanding loan.
e. THAT the costs of this application be provided for.
2. The grounds upon which the application is premised are that the Plaintiff obtained a loan facility of Ksh.11,000,000/- from the 1st Defendant, which she has continued to service, save for a default period of four months. The Plaintiff contends that the outstanding loan balance, which has since risen to approximately Ksh.21,000,000/-, was intended to run for a further period of four years.
3. The Plaintiff asserts that the intended sale of her properties by way of public auction is unlawful, illegal and irregular on the basis that the Defendants have failed to comply with the mandatory statutory requirements and due process of the law preceding the exercise of the power of sale. In particular, the Plaintiff contends that she was not served with the requisite statutory notices or notified of the intended auction.
4. The Plaintiff states that she only became aware of the intended auction through information received from her husband, who informed her that her properties were scheduled for auction on 30th June, 2025. She further avers that on 28th June, 2025, she received a telephone call from the 1st Defendant’s Manager informing her that the properties were yet to be auctioned, but the Manager declined to furnish her with the gazette notice relating to the intended sale.
5. The Plaintiff contends that the 1st Defendant has neither served her with the requisite notices nor communicated the intended auction to her, thereby rendering the proposed sale unlawful and liable to be stopped by an order of this Court.
6. The Plaintiff expresses apprehension that unless the orders sought are granted, her properties may be sold by the 2nd Defendant – an auctioneer – thereby occasioning her substantial and irreparable loss and damage which may not be adequately compensated by an award of damages.
7. The Plaintiff therefore urges that the intended auction and any consequential attachment or disposal of the properties be stayed pending the hearing and determination of the suit. She maintains that the application has been brought in good faith, without unreasonable delay, and that it is in the interests of justice that the orders sought be granted.
B. THE SUPPORTING AFFIDAVIT.
8. The application is supported by the Plaintiff’s affidavit sworn on 29th June, 2025, in which she deposes that together with her husband, they obtained a loan facility of Ksh.11,000,000/- from the 1st Defendant which she has continued to service.
9. The Plaintiff deposes that although she defaulted in repayment for a period of four months, she has continued making payments towards the loan and that the outstanding amount has since risen to approximately Ksh.21,000,000/-. She states that the repayment period for the facility has not lapsed and that there are still four years remaining before the loan term expires.
10. The Plaintiff contends that the intended sale of her properties by way of public auction is unlawful and irregular as the Defendants have failed to comply with the mandatory statutory requirements governing the exercise of the power of sale. She specifically deposes that she was not served with the requisite statutory notices or formally notified of the intended auction.
11. The Plaintiff states that she only became aware of the intended auction on 28th June, 2025 through information received from her estranged husband, who informed her that her properties were scheduled for auction on 30th June, 2025 pursuant to a notice. She further asserts that the 1st Defendant did not issue her with any formal written notification regarding the intended sale.
12. The Plaintiff further deposes that the properties intended for sale were valued at amounts substantially higher than the alleged amount in default and that the 1st Defendant was acting hastily by seeking to recover the entire outstanding principal sum despite the loan repayment period not having expired. She urges that the 1st Defendant be compelled to provide statements of accounts reflecting the loan repayments made and the loan agreement executed between the parties.
13. The Plaintiff states that her failure to meet the repayment obligations was occasioned by serious illness which required hospitalisation, but that she has since continued making payments in an effort to regularise the loan account.
14. The Plaintiff expresses apprehension that unless the orders sought are granted, her properties may be disposed of through the intended auction, thereby occasioning her irreparable loss and damage. She maintains that the application has been brought in good faith and without unreasonable delay, and urges the Court to grant the orders sought in the interest of justice.
C. THE DEFENDANTS’ REPLYING AFFIDAVIT.
15. In response to the application, the Defendants filed a replying affidavit sworn on 7th July, 2025 by Francis Wainaina Ngaruiya, the Head of Legal Services of the 1st Defendant, who deposes that the Plaintiff was, in or about June, 2018, granted credit facilities by the 1st Defendant in the sum of Ksh.22,000,000/- pursuant to a duly executed loan agreement and facility letter dated 12th June, 2018.
16. He states that the purpose of the facility was to take over existing facilities previously advanced to the Plaintiff by Sidian Bank amounting to Ksh.15,200,000/- and to provide additional funds for completion of construction works that were being undertaken by the Plaintiff and her husband on property known as Kisumu/Manyatta “A”/3495.
17. He deposes that the Plaintiff executed the loan agreement as borrower and guarantor, while her husband, James Ouma Odera, separately executed a guarantee and indemnity in favour of the 1st Defendant. He states that the loan facilities were secured by charges registered over various parcels of land belonging to the Plaintiff and her husband, and that the requisite consents, including spousal consents and Land Control Board consents, were duly obtained.
18. He asserts that the creation and registration of the charge instruments were lawful, regular and procedural, and that the Plaintiff was duly informed by an advocate of the terms and effect of the loan and charge documents, including the 1st Defendant’s statutory power of sale under the Land Act. He further contends that the Plaintiff confirmed her understanding of the said documents by executing the relevant certificates.
19. The deponent disputes the Plaintiff’s assertion that she is the owner or registered proprietor of land parcels East Alego/Mur Ng’iya/1634 and East Alego/Mur Ng’iya/1698, contending that the said properties belong to her husband and that she therefore lacks locus standi to challenge the intended sale of those properties.
20. He states that although the credit facilities were disbursed and utilised by the Plaintiff. she subsequently defaulted in repayment, resulting in arrears on the loan account. He deposes that as at 27th August, 2024, the outstanding amount stood at Ksh.21,548,120.59/-, while as at 5th June, 2025, the outstanding sum was Ksh.20,945,291.11/-. He states that the 1st Defendant thereafter commenced the process of recovery through realization of the securities provided.
21. The deponent denies the Plaintiff’s assertion that she was not supplied with statements of account and states that the 1st Defendant has consistently provided her with account information and statements in accordance with its banking obligations and customer care practices.
22. He further deposes that following the Plaintiff’s default, the 1st Defendant issued statutory notices under Section 90 of the Land Act on 27th August, 2024 through registered post to the Plaintiff and her husband. He states that upon continued default, the 1st Defendant instructed 2nd Defendant to proceed with realization of the securities, and that the auctioneers subsequently issued redemption notices and notifications of sale on 24th April, 2025 through personal service.
23. The deponent contends that the Plaintiff was aware of the existence of the charge, the default in repayment and the recovery process, and that her assertion that she only learnt of the intended auction through her husband is false and misleading. He maintains that the 1st Defendant was not required to await expiry of the loan repayment period before exercising its statutory power of sale following the Plaintiff’s default.
24. He states that the 1st Defendant complied with all legal requirements by commissioning a current valuation of the charged properties through Transcounty Valuers Limited and that the intended exercise of the statutory power of sale is therefore lawful, procedural and regular.
25. He denies that the 1st Defendant acted out of malice or with the intention of unfairly disposing of the Plaintiff’s properties, stating that the sale process was commenced solely for purposes of recovering monies advanced to the Plaintiff and which remain unpaid. He further states that the 1st Defendant had previously accommodated the Plaintiff by restructuring the loan facilities in May, 2022 and granting her an adjusted repayment schedule.
26. The deponent asserts that the Plaintiff’s alleged separation from her husband and illness do not excuse her failure to repay the loan, and that the allegations are unsubstantiated and intended to delay the recovery process. He maintains that the 1st Defendant’s right to exercise its statutory power of sale has crystallized and that the Plaintiff has not met the threshold for the grant of injunctive relief under the Land Act or the applicable principles governing injunctions.
27. He further contends that the balance of convenience favours the 1st Defendant, considering the outstanding indebtedness owed its depositors and shareholders and the expenses already incurred in the recovery process. He therefore urges that the application be dismissed with costs.
28. The Defendants additionally raises a preliminary objection that the present suit and application are sub judice on account of Siaya ELC No. E022 of 2025, James Ouma Odera v Credit Bank & Florence Akinyi Ohito, which the deponent states concerns the same loan transaction and properties and is still pending determination.
29. He states that in the said proceedings, James Ouma Odera claims ownership of certain parcels of land and alleges lack of knowledge of the loan and charge transactions, whereas the Plaintiff herein acknowledges that the loan facility and securities were undertaken together with her husband and with his knowledge and participation.
30. He therefore accuses the Plaintiff and her husband of dishonesty, misrepresentation and suppression of material facts, alleging that they have sought to frustrate the recovery process and abuse the court process. He maintains that the Plaintiff is undeserving of the orders sought and urges the Court to dismiss the application.
31. The Defendants further resist the application vide their grounds of opposition dated 14th July, 2025, which in precis are that the application and the suit as filed are substantively and procedurally defective, bad in law and fatally incompetent and are therefore undeserving of the Court’s consideration.
32. The Defendants further assert that the Plaintiff lacks the requisite locus standi to institute and maintain the proceedings in respect of land parcels known as East Alego/Mur Ng’iya/1634 and East Alego/Mur Ng’iya/1698, which they contend are not registered in her name.
33. The Defendants also reiterate that the present suit and application are sub judice, having regard to the pending proceedings in Siaya ELC Case No. E022 of 2025, which they state relate to the same subject matter and remain pending determination before the Environment and Land Court at Siaya.
34. The Defendants maintain that the Plaintiff has not established any sufficient, prima facie or valid grounds to justify the grant of the orders sought and urge the Court to dismiss the application.
35. In rejoinder, the Plaintiff filed a further affidavit that she swore on 24th July, 2025 in which she contends that she obtained a loan facility of Ksh.22,000,000/- from the 1st Defendant, which was repayable over a period of 84 months through monthly instalments of Ksh.406,674/-, with the repayment period extending to the year 2029.
36. The Plaintiff asserts that the loan repayment period had not expired and that the Defendants’ decision to proceed with the sale of the charged properties before the expiry of the agreed repayment period amounted to a breach of the loan agreement and denied her an opportunity to fulfil her contractual obligations.
37. She deposes that she had been diligent in servicing the loan until she fell ill and was hospitalised, a fact which was within the knowledge of the 1st Defendant. She contends that the Defendants ought to have demanded payment of the arrears arising from the default in monthly instalments rather than seek recovery of the entire loan amount before the expiry of the loan term.
38. The Plaintiff maintains that despite the 1st Defendant being in possession of her personal contact details, including her email address and telephone number, it neither served her with the statutory notices nor supplied her with statements of accounts until June, 2025, when she was informed of the intended auction scheduled for 30th June, 2025.
39. She challenges the Defendant’s assertion that the statutory notices were served through her former husband’s postal address, contending that they had separated and were living apart and that the 1st Defendant ought to have served her directly through the contact details in its possession. She therefore maintains that the alleged service of notices was invalid and incapable of supporting the intended auction.
40. The Plaintiff further contends that the 1st Defendant’s decision to contact her on 28th June, 2025 informing her of the intended auction was an afterthought, particularly after she had instructed her advocates to demand the production of the loan statements and statutory notices.
41. She alleges that the 1st Defendant had increased the interest rate on the loan, thereby making repayment difficult, and that although she had sought restructuring of the facility, the 1st Defendant was unwilling to address the matter. She states that her monthly repayments increased from approximately Ksh.400,000/- to Ksh.460,000/-.
42. The Plaintiff further deposes that she had previously secured a prospective purchaser for one of the charged properties, namely Kisumu/Manyatta “A”/3495, at a consideration of Ksh.21,000,000/-, who was willing to pay a deposit of Ksh.14,000,000/- when the arrears were only Ksh.1,000,000/-, but the 1st Defendant declined the proposal. She maintains that the 1st Defendant would not have suffered any prejudice since the title would only have been discharged upon payment of the purchase price in full.
43. The Plaintiff states that she has since recovered from her illness and is capable of resuming regular repayment of the loan. She undertakes to clear the outstanding arrears and accrued interest within the remaining loan period.
44. She disputes the valuation report relied upon by the Defendants, contending that it does not reflect the true market value of the charged properties. She asserts that an independent valuation would demonstrate that the properties are worth substantially more than the values indicated by the Defendants.
45. The Plaintiff contends that the sale of a single property would be sufficient to offset the outstanding loan balance and that the proposed auction of all five parcels of land is excessive, unreasonable and disproportionate. She maintains that the Respondent’s exercise of its statutory power of sale should be limited to what is necessary to recover the outstanding debt.
46. She maintains that she has established a prima facie case and that she stands to suffer irreparable harm incapable of adequate compensation by damages if the properties are sold and she is evicted from her home. She therefore asserts that the balance of convenience favours preservation of the properties pending determination of the application.
47. The Plaintiff disputes the Defendants’ contention that the matter is sub judice on account of Siaya ELC Case No. E022 of 2025. She contends that the two matters concern different parties and seek different reliefs, as the present proceedings relate to the legality of the intended auction arising from alleged non-compliance with statutory procedure, while the Siaya matter concerns a dispute between herself and her former husband over two matrimonial properties.
48. She further states that she instituted the present proceedings before she was served with pleadings in the Siaya matter and could not have anticipated that her former husband would institute separate proceedings seeking to restrain the sale of the two properties.
49. The Plaintiff maintains that she has locus standi in respect of the properties known as East Alego/Mur Ng’iya/1634 and East Alego/Mur Ng’iya/1698, despite the same being registered in her former husband’s name. She contends that the properties constitute matrimonial property acquired by her and that her former husband participated in and consented to the loan transaction and execution of the relevant security documents.
50. She asserts that the 1st Defendant cannot claim that she lacks sufficient interest in the said properties while at the same time acknowledging that she was the spouse of the registered owner and that both parties executed spousal consents in relation to the charged properties.
51. The Plaintiff therefore maintains that the issues raised in the application, including the validity of service of statutory notices and the propriety of the valuation, raise substantial questions for determination by the Court.
52. She reiterates that the application was filed without delay and urges the Court to grant the orders sought, including restraining the intended auction, directing an independent valuation of the properties and limiting any enforcement action to the sale of a single property sufficient to settle the outstanding loan balance.
D. THE PLAINTIFF’S SUBMISSIONS.
53. The Plaintiff submits that the present application seeks, inter alia, temporary injunctive orders restraining the Defendants from disposing of, alienating, advertising for sale or otherwise dealing with the charged properties pending the hearing and determination of the suit.
54. The Plaintiff submits that she has satisfied the principles for the grant of an interlocutory injunction as set out in Giella v Cassman Brown & Co. Ltd [1973] EA 358, namely, that she has established a prima facie case with a probability of success, that she stands to suffer irreparable harm which cannot adequately be compensated by damages, and that the balance of convenience favours the grant of the orders sought.
55. On whether she has established a prima facie case, the Plaintiff relies on the decision in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, where a prima facie case was described as a genuine and arguable case demonstrating that a right has apparently been infringed, thereby calling for a rebuttal from the opposing party.
56. The Plaintiff submits that although she obtained the loan facility, she only defaulted for a short period and that the 1st Defendant proceeded to instruct the 2nd Defendant to advertise and sell her matrimonial properties, which she contends are valued at approximately Ksh.45,000,000/-. She argues that the intended sale is premature since the repayment period of the loan had not expired.
57. The Plaintiff contends that the Defendants failed to comply with the requirements governing the sale of immovable property by auction under Sections 15 and 16 of the Auctioneers Act. She submits that the 2nd Defendant was required to issue and serve the requisite notification of sale, provide the statutory redemption period and publish a proper advertisement containing the relevant details of the intended auction.
58. The Plaintiff argues that the statutory notices and notification of sale were not served upon her but were allegedly served upon her husband, with whom she had separated. She submits that since she was a chargor and the 1st Defendant was in possession of her personal contact details, including her telephone number and email address, the Defendants ought to have served her directly.
59. The Plaintiff further submits that the 1st Defendant acted unfairly by increasing the interest rates, thereby frustrating her ability to repay the loan. She states that her failure to make payments was occasioned by serious illness and hospitalisation, which circumstances were known to the 1st Defendant.
60. The Plaintiff submits that she has therefore demonstrated a prima facie case with a probability of success on account of the alleged failure by the Respondents to comply with the statutory requirements preceding the exercise of the power of sale.
61. On irreparable harm, the Plaintiff submits that she stands to lose all her properties, including matrimonial property and her home, if the intended auction proceeds. She argues that such loss cannot adequately be compensated by an award of damages. Reliance is placed on J.M. Gichanga v Co-operative Bank of Kenya Ltd [2005] eKLR, where the Court recognized that damages may not always be an adequate remedy where there has been a breach of a legal right.
62. The Plaintiff further relies on Waithaka v Industrial and Commercial Development Corporation [2001] KLR 374 for the proposition that the possibility of damages being available does not automatically bar the grant of an injunction, as monetary compensation is not always an adequate substitute for the protection of legal rights.
63. The Plaintiff also relies on Joseph Siro Mosioma v Housing Finance Company of Kenya & 3 Others, Nairobi HCCC No. 265 of 2007, for the proposition that damages cannot be treated as a substitute for a clear breach of the law and that a party should not be compelled to accept damages in place of protection of a crystallised right.
64. The Plaintiff submits that if the Defendants are allowed to proceed with the sale of the properties, she will be left litigating in vain, and that the only effective remedy available to preserve the subject matter of the suit is the grant of an injunction.
65. On the balance of convenience, the Plaintiff submits that the Court is not in doubt as to the merits of the application, having demonstrated the failure by the Defendants to follow the prescribed statutory procedure. She argues that the balance of convenience favours preservation of the properties to enable her to continue fulfilling her repayment obligations.
66. In response to the objection on sub judice, the Plaintiff submits that the present suit is not sub judice by reason of Siaya ELC Case No. E022 of 2025, as she had filed the present proceedings before becoming aware of the existence of the Siaya matter. She contends that she could not have anticipated that her former husband would institute separate proceedings seeking injunctive relief over some of the properties.
67. The Plaintiff further submits that the Siaya proceedings relate only to two properties, namely East Alego/Mur Ng’iya/1634 and East Alego/Mur Ng’iya/1698, whereas the present suit concerns additional properties and raises issues relating to the legality of the intended auction and compliance with statutory procedure.
68. The Plaintiff argues that the parties and reliefs sought in the two matters are different and that the present suit is therefore properly before the Court. She relies on Attorney General & Another v Andrew Mwaura Githinji & Another [2016] eKLR for the proposition that a preliminary objection must raise a pure point of law and cannot be founded on disputed facts or matters requiring judicial discretion.
69. The Plaintiff therefore urges the Court to find that the application meets the threshold for the grant of an interlocutory injunction and to grant the orders sought, including restraining the Defendants from proceeding with the intended auction and awarding costs of the application to the Plaintiff.
E. THE DEFENDANTS’ SUBMISSIONS.
70. On their part, the Defendants submit that the Plaintiff’s application is unmerited and ought to be dismissed.
71. The Defendants submit that the Plaintiff’s claim is premised on the contention that she is the registered proprietor of all the suit properties, that she obtained a loan from the 1st Defendant repayable until 2029, that she only defaulted for a short period due to illness, and that the intended sale is unlawful for want of compliance with the statutory procedures. They contend that these assertions are incorrect and unsupported by evidence.
72. The Defendants submit that the Plaintiff obtained a loan facility of Ksh.22,000,000/- from the 1st Defendant, which was secured through duly executed and registered charge instruments over the relevant properties. They argue that the Plaintiff’s indebtedness and default are admitted and that the outstanding loan stood at Ksh.21,548,120.59/- as at 27th August, 2024 and Ksh.20,945,291.11/- as at 5th June, 2025.
73. The Defendants submit that the terms of the loan agreement and charge instruments did not permit the Plaintiff to repay the loan at her convenience until 2029 or shield her from recovery action upon default. They contend that the contractual terms expressly provided that the loan was repayable in monthly instalments of Ksh.406,674/- for a maximum period of 84 months and that any default in repayment would trigger recovery measures, including the exercise of the statutory power of sale.
74. The Defendants submit that the Plaintiff’s illness and alleged financial difficulties do not excuse her contractual obligations, particularly where the loan was secured by charged properties and the 1st Defendant’s right to realize the securities had crystallized upon default.
75. On the Plaintiff’s prayer for provision of the loan documents, statements of account and letter of offer, the Defendants submit that the prayer is misconceived and does not arise in an application for injunction. They contend that the Plaintiff did not demonstrate any unsuccessful attempt to obtain the documents from the 1st Defendant and, in any event, the documents had already been supplied and exhibited in the replying affidavit.
76. The Defendants submit that the 1st Defendant complied with all statutory and contractual requirements before commencing the realization process. They state that statutory notices under Section 90 of the Land Act were issued to the Plaintiff and her husband by registered post on 27th August, 2024, and that upon continued default, the 2nd Defendant issued redemption notices and notifications of sale on 24th April, 2025 pursuant to Section 96(2) of the Land Act through personal service.
77. The Defendants contend that the Plaintiff’s assertion that she was unaware of the intended auction is false, noting that she admitted in her application that she became aware of the intended sale and had actual knowledge of the recovery process. They submit that the alleged failure to serve notices is therefore unsupported and that the intended exercise of the statutory power of sale is lawful, procedural and regular.
78. The Defendants further submit that the 1st Defendant commissioned a current valuation of the charged properties through Transcounty Valuers Limited and thereby complied with the applicable legal requirements. They contend that it acted in exercise of its contractual and statutory rights and not out of malice, but in order to recover monies advanced to the Plaintiff and owed to its shareholders and depositors.
79. The Defendants submit that the 1st Defendant had been accommodating towards the Plaintiff and had previously restructured the loan facility in May, 2022, thereby granting her additional time and an adjusted repayment schedule. They therefore argue that the allegation that it acted hastily or unfairly is without basis.
80. The Defendants further submit that the Plaintiff lacks locus standi in respect of land parcels known as East Alego/Mur Ng’iya/1634 and East Alego/Mur Ng’iya/1698, which they contend are registered in the name of her husband, James Ouma Odera. They argue that the said properties are the subject of pending proceedings in Siaya ELC Case No. E022 of 2025 and that the Plaintiff cannot seek injunctive orders over properties in which she ha
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