Introduction
1. Before the Court are the Plaintiff/Applicant’s applications dated 12th January 2026 and 13th January 2026. In the applications, the Plaintiff/Applicant seeks, in substance, orders of temporary injunction and/or maintenance of status quo restraining the Defendants/Respondents, whether by themselves, their servants, agents, auctioneers, nominees or any other persons acting under their instructions, from advertising for sale, selling by public auction or private treaty, transferring, alienating, leasing, charging, clogging or otherwise dealing with LR No. Kisii Municipality/Block I/675 pending the hearing and determination of the suit.
2. The applications arise from the 1st Defendant/Respondent’s intended exercise of its statutory power of sale over the suit property, which was charged by the Plaintiff/Applicant to secure banking facilities advanced to him by the 1st Defendant/Respondent.
3. The applications are supported by the Plaintiff/Applicant’s affidavit sworn on 12th January 2026. The Defendants/Respondents oppose the applications through the replying affidavit of Wainaina F. Ngaruiya, the Head of Legal Department of Credit Bank PLC, sworn on 19th January 2026, and a further affidavit sworn on 26th February 2026. The Defendants/Respondents also filed written submissions.
4. The Plaintiff/Applicant did not file a response to the 1st Defendant/Respondent’s replying affidavit. As a result, the facts presented by the Defendants/Respondents are largely unchallenged.
The Plaintiff’s/Applicant’s Case
5. The Plaintiff/Applicant said that between 2010 and 2016, he received several banking facilities from the 1st Defendant/Respondent to invest in his business. He claims he used LR No. Kisii Municipality/Block I/675 as security for these facilities.
6. He claims the total amount advanced was Kshs. 19,278,696.07, of which he has paid about Kshs. 8,200,000. He complains that the 1st Defendant/Respondent charged interest totaling Kshs. 51,544,015.77, which he says is unlawful, punitive, irregular, unconscionable, and contrary to the contract and the Banking Act.
7. He also says the Defendants/Respondents have issued notices and started steps to sell the property. He argues that the planned sale is premature, irregular, illegal, and meant to defeat his right to redeem the property.
8. The Plaintiff/Applicant asks the Court to protect the property until the case is heard and decided.
The Defendants’/Respondents’ Case
9. The Defendants/Respondents say the Plaintiff/Applicant received several banking facilities from the 1st Defendant/Respondent through letters of offer between 2010 and 2015. These included overdrafts and term loans. They state that the Plaintiff/Applicant willingly used the property as security for these facilities.
10. The 1st Defendant/Respondent also says the Plaintiff/Applicant defaulted on repayment. Because of this, the loans were restructured through a letter dated 8th November 2016 for a total of Kshs. 17,174,102. Under this new arrangement, the Plaintiff/Applicant was required to pay monthly installments of Kshs. 298,715.
11. The 1st Defendant/Respondent avers that despite the restructuring, the Plaintiff/Applicant failed to honour the repayment terms. It states that the Plaintiff’s/Applicant’s last payment was Kshs. 16,394.20, made on 12th September 2018, and that as at 16th January 2026, the outstanding amount stood at Kshs. 36,589,342.86.
12. The Defendants/Respondents also say that the earlier notice showing Kshs. 51,544,015.77 was a mistake. They explain that this notice was withdrawn and replaced with a new one showing the correct outstanding amount of Kshs. 36,589,342.86.
13. The Defendants/Respondents further contend that the Plaintiff/Applicant has filed the present proceedings on the basis of unsigned and/or unexecuted pleadings and applications. They rely on Order 2 Rule 16 of the Civil Procedure Rules and submit that an unsigned pleading is invalid in law.
14. The Defendants/Respondents also claim that the Plaintiff/Applicant has misused the court process by filing, either personally or through others, several cases to stop them from exercising their right to sell the property whenever a sale is planned.
Issues for Determination
15. Based on the pleadings, affidavits, and submissions, the following issues arise for determination:
a. Whether the Plaintiff’s/Applicant’s applications are competent.
b. Whether the applications meet the threshold for grant of temporary injunctions.
c. What orders should issue.
Whether the Applications are Competent
16. The Defendants/Respondents have taken issue with the competence of the suit and the applications on the ground that the plaint and the applications are unsigned and/or unexecuted.
17. Order 2 Rule 16 of the Civil Procedure Rules provides that every pleading shall be signed by an advocate, or by a recognised agent, or by the party if he sues or defends in person. The requirement for signature authenticates the pleading and identifies the person who assumes responsibility for its contents.
18. In Atulkumar Maganlal Shah v Investment & Mortgages Bank Limited & 2 Others, Civil Appeal No. 13 of 2001, the Court of Appeal emphasized that a party who files an unsigned plaint runs the grave risk of having it struck out for non-compliance with the rules. The same reasoning has been applied in later decisions where courts have held that an unsigned pleading lacks authentication and may be treated as a nullity.
19. I have considered the objection and find that a pleading that is not signed does not have the authentication of the party or advocate who presents it.
20. However, the Court notes that this issue was raised in response to interim applications, not through a formal request to strike out the whole suit. Striking out is a drastic measure and should only be used where there is no other viable option. Article 159(2) of the Constitution requires courts to focus on substantive justice over procedural technicalities. I will therefore apply Article 159(2)(d) of the Constitution and grant the Plaintiff/Applicant fourteen (14) days from today to sign the pleadings and upload them to the case tracking system.
Principles on Temporary Injunction
21. The principles applicable to the grant of temporary injunctions in Kenya are settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court held that an applicant must establish a prima facie case with a probability of success; must show that unless the injunction is granted he stands to suffer irreparable harm not compensable by damages; and, where the Court is in doubt, the matter is determined on a balance of convenience.
22. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, the Court of Appeal held that a prima facie case is more than an arguable case. It is a case which, on the material presented, shows that a right has apparently been infringed and calls for an answer from the opposite party.
23. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal restated that the three conditions in Giella are sequential. If a prima facie case is not established, the Court need not proceed to consider irreparable harm and balance of convenience.
Whether a Prima Facie Case Has Been Established
24. The Plaintiff/Applicant admits he received banking facilities from the 1st Defendant/Respondent. He also admits the property was used as security and that the loans were restructured but later fell into arrears.
25. The main issue the Plaintiff/Applicant raises is that the amount demanded is too high, irregular, and includes unlawful interest. He also disputes the notices and the planned sale.
26. The Defendants/Respondents have explained that the amount of Kshs. 51,544,015.77 appearing in the earlier courtesy notice was erroneous and has since been withdrawn and corrected to Kshs. 36,589,342.86. That explanation materially weakens the Plaintiff’s/Applicant’s contention that the intended sale is founded on the erroneous sum, provided that the Defendants/Respondents do not proceed on the withdrawn notice.
27. The law is settled that a dispute as to the amount owing only does not by itself restrain a chargee from exercising its statutory power of sale. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, the Court of Appeal held that where indebtedness is shown, a dispute over the exact amount due is not necessarily a basis for injuncting the chargee.
28. Similarly, in Orion East Africa Ltd v Eco Bank Kenya Ltd & Another [2015] eKLR, the Court of Appeal affirmed the principle that a mortgagee or chargee will not ordinarily be restrained from exercising the power of sale merely because the amount due is disputed or because the chargor objects to the manner in which the sale is arranged.
29. At this point, the Plaintiff/Applicant has not offered to deposit the claimed or undisputed amount in Court. He has not shown that he has fully repaid the loan or provided a payment record to challenge the 1st Defendant’s/Respondent’s claim that the loan is still largely unpaid.
30. The Plaintiff/Applicant also claims the 1st Defendant/Respondent charged unlawful interest. If proven at trial, this could lead to an order for accounts, adjustment, or refund. However, at this stage and based on the current evidence, it does not cancel the 1st Defendant’s/Respondent’s security or prevent it from enforcing the same.
31. Regarding statutory notices, the Defendants/Respondents have shown previous notices, including statutory and auctioneer’s notices. They also say the incorrect courtesy notice was withdrawn and replaced. The Court is not convinced, based on the current evidence, that there has been a serious enough breach of the law to justify an injunction before trial.
32. However, because the Defendants/Respondents admit that an erroneous notice was issued and later withdrawn, it follows that the Defendants/Respondents cannot lawfully proceed on the basis of that withdrawn or erroneous notice. Any sale must be founded on valid, subsisting and properly served notices.
33. In the circumstances, I find that the Plaintiff/Applicant has not established a prima facie case with a probability of success sufficient to warrant the grant of the injunction sought.
Irreparable Harm
34. The Plaintiff/Applicant argues that if the injunction is not granted, the property will be sold and he will suffer irreparable loss. The Court acknowledges that land can have sentimental value to its owner.
35. However, once land is offered as security for a banking facility, it becomes a commercial security available for sale in the event of default. In Andrew Muriuki Wanjohi v Equity Building Society Ltd & 2 Others [2006] eKLR, the Court held that a chargor who offers property as security is taken to know that the property may be sold if the borrower defaults.
36. The Plaintiff/Applicant has not shown any special feature of the property that would make damages insufficient. The property’s value can be determined by valuation. If the 1st Defendant/Respondent acts unlawfully and the Plaintiff/Applicant succeeds at trial, damages would be an adequate remedy. The second limb for the grant of an injunction has therefore not been satisfied.
Balance of Convenience
37. Even if the Court were to consider the balance of convenience, it would not tilt in favour of the Plaintiff/Applicant. The facilities were advanced many years ago. The loan was restructured in 2016. The 1st Defendant/Respondent states that the last payment was made in September 2018. It has been established that the indebtedness continues to accrue.
38. The Defendants/Respondents have also shown that the Plaintiff/Applicant or people connected to him have previously gone to court to stop the sale of the same property. While the Court will not make a final decision on abuse of process at this stage, the history of repeated cases is relevant when considering equitable relief.
39. It is trite law that he who comes to equity must come with clean hands. Equity does not aid a party who seeks relief while failing to meet his own contractual obligations. The balance of convenience lies in allowing the 1st Defendant/Respondent to pursue its contractual and statutory remedies, subject to strict compliance with the law.
Disposition
40. In the upshot, I find that the Plaintiff/Applicant has not met the threshold for grant of a temporary injunction.
41. Accordingly, I make the following orders:
a. The Plaintiff’s/Applicant’s applications dated 12th January 2026 and 13th January 2026 are hereby dismissed.
b. The interim orders previously issued restraining the Defendants/Respondents from dealing with LR No. Kisii Municipality/Block I/675 are hereby discharged.
c. The 1st Defendant/Respondent shall, within fourteen (14) days, furnish the Plaintiff/Applicant with an updated statement of account showing the principal sum, interest, penalties, charges, payments made and the current outstanding balance.
d. The Plaintiff/Applicant shall, within fourteen (14) days, regularize the court record by ensuring that all pleadings intended to be relied upon are properly signed and executed in accordance with the Civil Procedure Rules, failing which the Defendants/Respondents shall be at liberty to move the Court appropriately.
e. Costs of the applications shall be borne by the Plaintiff/Applicant.
f.. It is so ordered.
T. A. ODERA
JUDGE
20.5.2026
Delivered virtually via Teams platform on this 20th day of May 2026 in the presence of Mr. Mulisa holding brief for Mr. Onyango for the Applicant, Mr. Gekonge for the Respondent, and C/A Kipchirchir.
1. Before the Court are the Plaintiff/Applicant’s applications dated 12th January 2026 and 13th January 2026. In the applications, the Plaintiff/Applicant seeks, in substance, orders of temporary injunction and/or maintenance of status quo restraining the Defendants/Respondents, whether by themselves, their servants, agents, auctioneers, nominees or any other persons acting under their instructions, from advertising for sale, selling by public auction or private treaty, transferring, alienating, leasing, charging, clogging or otherwise dealing with LR No. Kisii Municipality/Block I/675 pending the hearing and determination of the suit.
2. The applications arise from the 1st Defendant/Respondent’s intended exercise of its statutory power of sale over the suit property, which was charged by the Plaintiff/Applicant to secure banking facilities advanced to him by the 1st Defendant/Respondent.
3. The applications are supported by the Plaintiff/Applicant’s affidavit sworn on 12th January 2026. The Defendants/Respondents oppose the applications through the replying affidavit of Wainaina F. Ngaruiya, the Head of Legal Department of Credit Bank PLC, sworn on 19th January 2026, and a further affidavit sworn on 26th February 2026. The Defendants/Respondents also filed written submissions.
4. The Plaintiff/Applicant did not file a response to the 1st Defendant/Respondent’s replying affidavit. As a result, the facts presented by the Defendants/Respondents are largely unchallenged.
The Plaintiff’s/Applicant’s Case
5. The Plaintiff/Applicant said that between 2010 and 2016, he received several banking facilities from the 1st Defendant/Respondent to invest in his business. He claims he used LR No. Kisii Municipality/Block I/675 as security for these facilities.
6. He claims the total amount advanced was Kshs. 19,278,696.07, of which he has paid about Kshs. 8,200,000. He complains that the 1st Defendant/Respondent charged interest totaling Kshs. 51,544,015.77, which he says is unlawful, punitive, irregular, unconscionable, and contrary to the contract and the Banking Act.
7. He also says the Defendants/Respondents have issued notices and started steps to sell the property. He argues that the planned sale is premature, irregular, illegal, and meant to defeat his right to redeem the property.
8. The Plaintiff/Applicant asks the Court to protect the property until the case is heard and decided.
The Defendants’/Respondents’ Case
9. The Defendants/Respondents say the Plaintiff/Applicant received several banking facilities from the 1st Defendant/Respondent through letters of offer between 2010 and 2015. These included overdrafts and term loans. They state that the Plaintiff/Applicant willingly used the property as security for these facilities.
10. The 1st Defendant/Respondent also says the Plaintiff/Applicant defaulted on repayment. Because of this, the loans were restructured through a letter dated 8th November 2016 for a total of Kshs. 17,174,102. Under this new arrangement, the Plaintiff/Applicant was required to pay monthly installments of Kshs. 298,715.
11. The 1st Defendant/Respondent avers that despite the restructuring, the Plaintiff/Applicant failed to honour the repayment terms. It states that the Plaintiff’s/Applicant’s last payment was Kshs. 16,394.20, made on 12th September 2018, and that as at 16th January 2026, the outstanding amount stood at Kshs. 36,589,342.86.
12. The Defendants/Respondents also say that the earlier notice showing Kshs. 51,544,015.77 was a mistake. They explain that this notice was withdrawn and replaced with a new one showing the correct outstanding amount of Kshs. 36,589,342.86.
13. The Defendants/Respondents further contend that the Plaintiff/Applicant has filed the present proceedings on the basis of unsigned and/or unexecuted pleadings and applications. They rely on Order 2 Rule 16 of the Civil Procedure Rules and submit that an unsigned pleading is invalid in law.
14. The Defendants/Respondents also claim that the Plaintiff/Applicant has misused the court process by filing, either personally or through others, several cases to stop them from exercising their right to sell the property whenever a sale is planned.
Issues for Determination
15. Based on the pleadings, affidavits, and submissions, the following issues arise for determination:
a. Whether the Plaintiff’s/Applicant’s applications are competent.
b. Whether the applications meet the threshold for grant of temporary injunctions.
c. What orders should issue.
Whether the Applications are Competent
16. The Defendants/Respondents have taken issue with the competence of the suit and the applications on the ground that the plaint and the applications are unsigned and/or unexecuted.
17. Order 2 Rule 16 of the Civil Procedure Rules provides that every pleading shall be signed by an advocate, or by a recognised agent, or by the party if he sues or defends in person. The requirement for signature authenticates the pleading and identifies the person who assumes responsibility for its contents.
18. In Atulkumar Maganlal Shah v Investment & Mortgages Bank Limited & 2 Others, Civil Appeal No. 13 of 2001, the Court of Appeal emphasized that a party who files an unsigned plaint runs the grave risk of having it struck out for non-compliance with the rules. The same reasoning has been applied in later decisions where courts have held that an unsigned pleading lacks authentication and may be treated as a nullity.
19. I have considered the objection and find that a pleading that is not signed does not have the authentication of the party or advocate who presents it.
20. However, the Court notes that this issue was raised in response to interim applications, not through a formal request to strike out the whole suit. Striking out is a drastic measure and should only be used where there is no other viable option. Article 159(2) of the Constitution requires courts to focus on substantive justice over procedural technicalities. I will therefore apply Article 159(2)(d) of the Constitution and grant the Plaintiff/Applicant fourteen (14) days from today to sign the pleadings and upload them to the case tracking system.
Principles on Temporary Injunction
21. The principles applicable to the grant of temporary injunctions in Kenya are settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court held that an applicant must establish a prima facie case with a probability of success; must show that unless the injunction is granted he stands to suffer irreparable harm not compensable by damages; and, where the Court is in doubt, the matter is determined on a balance of convenience.
22. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, the Court of Appeal held that a prima facie case is more than an arguable case. It is a case which, on the material presented, shows that a right has apparently been infringed and calls for an answer from the opposite party.
23. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal restated that the three conditions in Giella are sequential. If a prima facie case is not established, the Court need not proceed to consider irreparable harm and balance of convenience.
Whether a Prima Facie Case Has Been Established
24. The Plaintiff/Applicant admits he received banking facilities from the 1st Defendant/Respondent. He also admits the property was used as security and that the loans were restructured but later fell into arrears.
25. The main issue the Plaintiff/Applicant raises is that the amount demanded is too high, irregular, and includes unlawful interest. He also disputes the notices and the planned sale.
26. The Defendants/Respondents have explained that the amount of Kshs. 51,544,015.77 appearing in the earlier courtesy notice was erroneous and has since been withdrawn and corrected to Kshs. 36,589,342.86. That explanation materially weakens the Plaintiff’s/Applicant’s contention that the intended sale is founded on the erroneous sum, provided that the Defendants/Respondents do not proceed on the withdrawn notice.
27. The law is settled that a dispute as to the amount owing only does not by itself restrain a chargee from exercising its statutory power of sale. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, the Court of Appeal held that where indebtedness is shown, a dispute over the exact amount due is not necessarily a basis for injuncting the chargee.
28. Similarly, in Orion East Africa Ltd v Eco Bank Kenya Ltd & Another [2015] eKLR, the Court of Appeal affirmed the principle that a mortgagee or chargee will not ordinarily be restrained from exercising the power of sale merely because the amount due is disputed or because the chargor objects to the manner in which the sale is arranged.
29. At this point, the Plaintiff/Applicant has not offered to deposit the claimed or undisputed amount in Court. He has not shown that he has fully repaid the loan or provided a payment record to challenge the 1st Defendant’s/Respondent’s claim that the loan is still largely unpaid.
30. The Plaintiff/Applicant also claims the 1st Defendant/Respondent charged unlawful interest. If proven at trial, this could lead to an order for accounts, adjustment, or refund. However, at this stage and based on the current evidence, it does not cancel the 1st Defendant’s/Respondent’s security or prevent it from enforcing the same.
31. Regarding statutory notices, the Defendants/Respondents have shown previous notices, including statutory and auctioneer’s notices. They also say the incorrect courtesy notice was withdrawn and replaced. The Court is not convinced, based on the current evidence, that there has been a serious enough breach of the law to justify an injunction before trial.
32. However, because the Defendants/Respondents admit that an erroneous notice was issued and later withdrawn, it follows that the Defendants/Respondents cannot lawfully proceed on the basis of that withdrawn or erroneous notice. Any sale must be founded on valid, subsisting and properly served notices.
33. In the circumstances, I find that the Plaintiff/Applicant has not established a prima facie case with a probability of success sufficient to warrant the grant of the injunction sought.
Irreparable Harm
34. The Plaintiff/Applicant argues that if the injunction is not granted, the property will be sold and he will suffer irreparable loss. The Court acknowledges that land can have sentimental value to its owner.
35. However, once land is offered as security for a banking facility, it becomes a commercial security available for sale in the event of default. In Andrew Muriuki Wanjohi v Equity Building Society Ltd & 2 Others [2006] eKLR, the Court held that a chargor who offers property as security is taken to know that the property may be sold if the borrower defaults.
36. The Plaintiff/Applicant has not shown any special feature of the property that would make damages insufficient. The property’s value can be determined by valuation. If the 1st Defendant/Respondent acts unlawfully and the Plaintiff/Applicant succeeds at trial, damages would be an adequate remedy. The second limb for the grant of an injunction has therefore not been satisfied.
Balance of Convenience
37. Even if the Court were to consider the balance of convenience, it would not tilt in favour of the Plaintiff/Applicant. The facilities were advanced many years ago. The loan was restructured in 2016. The 1st Defendant/Respondent states that the last payment was made in September 2018. It has been established that the indebtedness continues to accrue.
38. The Defendants/Respondents have also shown that the Plaintiff/Applicant or people connected to him have previously gone to court to stop the sale of the same property. While the Court will not make a final decision on abuse of process at this stage, the history of repeated cases is relevant when considering equitable relief.
39. It is trite law that he who comes to equity must come with clean hands. Equity does not aid a party who seeks relief while failing to meet his own contractual obligations. The balance of convenience lies in allowing the 1st Defendant/Respondent to pursue its contractual and statutory remedies, subject to strict compliance with the law.
Disposition
40. In the upshot, I find that the Plaintiff/Applicant has not met the threshold for grant of a temporary injunction.
41. Accordingly, I make the following orders:
a. The Plaintiff’s/Applicant’s applications dated 12th January 2026 and 13th January 2026 are hereby dismissed.
b. The interim orders previously issued restraining the Defendants/Respondents from dealing with LR No. Kisii Municipality/Block I/675 are hereby discharged.
c. The 1st Defendant/Respondent shall, within fourteen (14) days, furnish the Plaintiff/Applicant with an updated statement of account showing the principal sum, interest, penalties, charges, payments made and the current outstanding balance.
d. The Plaintiff/Applicant shall, within fourteen (14) days, regularize the court record by ensuring that all pleadings intended to be relied upon are properly signed and executed in accordance with the Civil Procedure Rules, failing which the Defendants/Respondents shall be at liberty to move the Court appropriately.
e. Costs of the applications shall be borne by the Plaintiff/Applicant.
f.. It is so ordered.
T. A. ODERA
JUDGE
20.5.2026
Delivered virtually via Teams platform on this 20th day of May 2026 in the presence of Mr. Mulisa holding brief for Mr. Onyango for the Applicant, Mr. Gekonge for the Respondent, and C/A Kipchirchir.