1. The plaintiff was advanced Kes. 20,000,000/- by the defendant, as set out in a letter of offer dated 30th May 2023. The amount was repayable over 4 years in 48 equal monthly instalments of Kes. 507,255/-. The loan was secured by a first-ranking charge over CR No. 39917, Nyali, Mombasa, which the plaintiff's directors use as their matrimonial home. The facility was intended to support an electric mobility business involving the import, assembly and sale of electric motorcycles, and the setting up of battery-swap infrastructure within Mombasa.
2. The directors of the plaintiff, unfortunately, faced misfortunes that appear to have affected the company’s business. The company was thereafter unable to meet its commitments to the defendant. At the time the suit was filed, the defendant was in default, as only Kes 1,799,510.00 had been paid. The plaintiff does not deny that there was a default in meeting the loan obligations, nor does it contest the issuance of the statutory notices, nor the fact that the lender’s right to realize the security had accrued. What the Notice of Motion dated 12th January 2026 contests is the valuation of the charged property. It is stated that the chargee’s valuation is incorrect and would lead to the sale of the charged property at a gross undervaluation, and would not pay off the loan in full. As a result, even after the matrimonial house is sold, the plaintiff will still be left with millions of shillings in debt that it must pay, and the directors, as personal guarantors, would still be under an obligation to underwrite.
3. The application was opposed by the defendant. Ms Charity Ndeke, the defendant's Manager of Legal Services, averred that the plaintiff was in default. In support of that contention, she produced the loan statement and various notices issued to the plaintiff and the directors. Ms Ndeke contended that when the property was valued, the 1st director of the plaintiff wrote to the defendant seeking 3 months to finalize the investment. It was further contended that he was categorical that, should he fail, he would not object to the auction sale of the property. The letter was dated 26th July 2025.
4. The application was canvassed by way of written submissions, which I have considered. The submissions of the plaintiff are dated 19th February 2026. Those of the Respondent are dated 17th February 2026.
5. Has a case been made for the grant of an injunction? The conditions that an applicant for an interlocutory injunction must satisfy for it to issue are well settled. The plaintiff must show, firstly, that there is a prima facie case with a probability of success. Secondly, that he will suffer irreparable harm that cannot be compensated by an award of damages unless an injunction is granted. Thirdly, that the balance of convenience favours the grant of an injunction (see Giella v Cassman Brown & Co. Ltd (1973) EA 358).
6. The Court of Appeal considered the above conditions in the case of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR). The Judges of Appeal held that:
“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
(a)establish his case only at a prima facie level,
(b)demonstrate irreparable injury if a temporary injunction is not granted, and
(c)ally any doubts as to (b) by showing that the balance of convenience is in his favour.
27. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between
7. I will therefore consider the three conditions in turn. My first port of call is to assess whether there is a prima facie case. The Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) defined what amounts to a prima facie case for the purposes of an application for an interlocutory injunction as follows:
“… I would say that in civil cases it is a case in which, on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”
8. My understanding of the matter before me is that the issue the Court will have to determine is whether the proposed sale is bona fide. I must thus examine what section 97(1) of the Land Act provides. It states that:
“(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.”
9. I agree with the plaintiff’s counsel that the chargee has a duty to act in good faith, transparently, reasonably and in a commercially justifiable manner. In this case, there has been an unexplained decline in the property's valuation, as evidenced by the latest valuation carried out by the defendant’s valuer. The fall in the valuation price creates doubt in this Court's mind as to whether the proposed sale is intended to obtain the best possible sale price for the property. In my view, the question of whether the proposed sale complies with Section 97 of the Land Act is a triable issue.
10. I must point out that the obligation on the part of the chargee to obtain the best possible price is one that cannot be constrained. Section 97(7) of the Land Act is categorical that:
“Any attempt by a chargee to exclude all or any of the provisions of this section in any charge instrument or any agreement collateral to a charge or in any other way shall be void.”
11. I am therefore satisfied that there is a prima facie case with probability of success. That being so, the first condition has been met.
12. The plaintiff’s directors, who guaranteed the facility, may lose their matrimonial home. They are sickly. A loss of their matrimonial home would surely not be capable of compensation by an award of damages. I say this, noting that both directors have severe health challenges. The second test has, in my view, therefore been met.
13. In my view, the balance of convenience tilts in favour of the grant of an injunction. It would be better to obtain an appropriate valuation first before selling the property.
14. In light of the foregoing, the orders that commend themselves to me are:-
1. A temporary injunction is hereby issued preventing the defendant from selling the charged property pending the hearing and determination of the substantive suit on condition that the plaintiff pays Kes. 507,255/-, on or before 30th May 2026, and thereafter on every 30th day of each subsequent month until the loan is fully paid, or this matter is heard and determined on the merits, whichever happens first;
2. In default, the defendant will be at liberty to sell the charged property, provided section 97 of the Land Act is complied with.
15. Costs shall be in the cause.
16. It is so ordered.
Dated and Signed this 11th day of May, 2026. Delivered virtually through Microsoft TEAMS.
2. The directors of the plaintiff, unfortunately, faced misfortunes that appear to have affected the company’s business. The company was thereafter unable to meet its commitments to the defendant. At the time the suit was filed, the defendant was in default, as only Kes 1,799,510.00 had been paid. The plaintiff does not deny that there was a default in meeting the loan obligations, nor does it contest the issuance of the statutory notices, nor the fact that the lender’s right to realize the security had accrued. What the Notice of Motion dated 12th January 2026 contests is the valuation of the charged property. It is stated that the chargee’s valuation is incorrect and would lead to the sale of the charged property at a gross undervaluation, and would not pay off the loan in full. As a result, even after the matrimonial house is sold, the plaintiff will still be left with millions of shillings in debt that it must pay, and the directors, as personal guarantors, would still be under an obligation to underwrite.
3. The application was opposed by the defendant. Ms Charity Ndeke, the defendant's Manager of Legal Services, averred that the plaintiff was in default. In support of that contention, she produced the loan statement and various notices issued to the plaintiff and the directors. Ms Ndeke contended that when the property was valued, the 1st director of the plaintiff wrote to the defendant seeking 3 months to finalize the investment. It was further contended that he was categorical that, should he fail, he would not object to the auction sale of the property. The letter was dated 26th July 2025.
4. The application was canvassed by way of written submissions, which I have considered. The submissions of the plaintiff are dated 19th February 2026. Those of the Respondent are dated 17th February 2026.
5. Has a case been made for the grant of an injunction? The conditions that an applicant for an interlocutory injunction must satisfy for it to issue are well settled. The plaintiff must show, firstly, that there is a prima facie case with a probability of success. Secondly, that he will suffer irreparable harm that cannot be compensated by an award of damages unless an injunction is granted. Thirdly, that the balance of convenience favours the grant of an injunction (see Giella v Cassman Brown & Co. Ltd (1973) EA 358).
6. The Court of Appeal considered the above conditions in the case of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR). The Judges of Appeal held that:
“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
(a)establish his case only at a prima facie level,
(b)demonstrate irreparable injury if a temporary injunction is not granted, and
(c)ally any doubts as to (b) by showing that the balance of convenience is in his favour.
27. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between
7. I will therefore consider the three conditions in turn. My first port of call is to assess whether there is a prima facie case. The Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) defined what amounts to a prima facie case for the purposes of an application for an interlocutory injunction as follows:
“… I would say that in civil cases it is a case in which, on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”
8. My understanding of the matter before me is that the issue the Court will have to determine is whether the proposed sale is bona fide. I must thus examine what section 97(1) of the Land Act provides. It states that:
“(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.”
9. I agree with the plaintiff’s counsel that the chargee has a duty to act in good faith, transparently, reasonably and in a commercially justifiable manner. In this case, there has been an unexplained decline in the property's valuation, as evidenced by the latest valuation carried out by the defendant’s valuer. The fall in the valuation price creates doubt in this Court's mind as to whether the proposed sale is intended to obtain the best possible sale price for the property. In my view, the question of whether the proposed sale complies with Section 97 of the Land Act is a triable issue.
10. I must point out that the obligation on the part of the chargee to obtain the best possible price is one that cannot be constrained. Section 97(7) of the Land Act is categorical that:
“Any attempt by a chargee to exclude all or any of the provisions of this section in any charge instrument or any agreement collateral to a charge or in any other way shall be void.”
11. I am therefore satisfied that there is a prima facie case with probability of success. That being so, the first condition has been met.
12. The plaintiff’s directors, who guaranteed the facility, may lose their matrimonial home. They are sickly. A loss of their matrimonial home would surely not be capable of compensation by an award of damages. I say this, noting that both directors have severe health challenges. The second test has, in my view, therefore been met.
13. In my view, the balance of convenience tilts in favour of the grant of an injunction. It would be better to obtain an appropriate valuation first before selling the property.
14. In light of the foregoing, the orders that commend themselves to me are:-
1. A temporary injunction is hereby issued preventing the defendant from selling the charged property pending the hearing and determination of the substantive suit on condition that the plaintiff pays Kes. 507,255/-, on or before 30th May 2026, and thereafter on every 30th day of each subsequent month until the loan is fully paid, or this matter is heard and determined on the merits, whichever happens first;
2. In default, the defendant will be at liberty to sell the charged property, provided section 97 of the Land Act is complied with.
15. Costs shall be in the cause.
16. It is so ordered.
Dated and Signed this 11th day of May, 2026. Delivered virtually through Microsoft TEAMS.