' 1. By way of a Notice of Motion dated 24th May 2025, the Applicant seeks the following orders;
1) Spent
2) Spent
3) That a temporary injunction do issue restraining the Defendants/Respondents, their agents, servants and/or employees from advertising, offering for sale by way of public auction or private treaty and/or transferring, disposing off and/or in any manner dealing with all that Parcel of Land known as Parcels of Land known as LR. NO. MOMBASA/MS BLOCK 1/253, LR NO. NANDI/CHEPTARIT/109, ELGEYO BORDER BLOCK 1 (BELIOMO) /272, LR NO. MN/11/6165 ORIGINAL GRANTNUMBERCR 45544 pending the hearing and determination of the main suit.
4) That costs be provided for.
2. The application is expressed to be brought under order 40 Rule (1), (2) and 9, Order 20 Rule 4 of the Civil Procedure Rules 2010 as read with Sections 1 A, 3 and 3 (A), 63 (e) of the Civil Procedure Act Chapter 21 Laws of Kenya, Rules 15 and 16 of the Auctioneer Rules 1997 and all other enabling provisions of the law.
3. The application is premised on the grounds on the face of it and the averments in the affidavit of the 1st Applicant, Henry Lelei.
4. In his affidavit, the deponent averred that he was the director of the 5th and 6th Applicants and further, that he had the authority of the 2nd and 3rd Plaintiffs/Applicants to swear the affidavit on their behalf. He annexed a copy of the board resolutions marked as HL1''. He stated that together with the 2nd and the 4th Plaintiff, they charged land parcel LR. MOMBASA/MS BLOCK 1/253, LR NO. NANDI/CHEPTARIT/109, ELGEYO BORDER BLOCK (BELIOMO)/272, LR NO. MN/11/6165 ORIGINAL GRANT NUMBERCR. 45544 for a loan of Kshs. 40,000,000/= advanced to the 5th plaintiff and 20,000,000/= and an overdraft of Kshs. 10,000,000/= advanced to the 6th plaintiff by the 1st defendant. He annexed a copy of title, search certificate and certificates of registration of mortgages and charges marked as HL ‘2’.
5. The deponent averred that they had filed their application dated 23rd August, 2023 which was dismissed on a technicality on 30th October, 2024 as the prayers sought were misconceived and bad in law. He annexed a copy of the ruling marked as HL ''3''. That the matter went through the pre trials and is set for hearing of the main suit on 26th day of May, 2025 and the defendants advertised the suit properties for sale by way of public auction. He urged that the defendants'' advertisement of the suit land for sale by way of public auction is dishonest and an attempt to steal a match from them and dispose of their suit as they have already filed a counterclaim in court for the same amount of Kshs. 189,644,873.30/= they claim as arrears and therefore the sale will amount to double jeopardy, annexing and marking the counter claim as HL5.
6. He urged that the defendants have inflated the loan arrears they claim is owed by the 5th and 6th plaintiffs as they have in the redemption notices and notifications of sale indicated the amount owing as Kshs. 189,644,873.30/= which is impossible as the principal sum borrowed was Kshs. 78,000,000/= out of which Kshs. 40,000,000/= and a calculation of the unpaid principal sum and interest cannot reasonably amount to the sum demanded and which issues are pending determination in the main suit.
7. The deponent averred that the orders of injunction are paramount to preserve the suit land as the suit will be disposed of and overtaken by events if the same is sold before the same is determined. Further, that the intended sale by way of Public Auction is in bad faith as the defendants have a counterclaim and therefore will not suffer from any prejudice if the orders sought are granted. He stated that the charged properties have their family/matrimonial houses where the families live and sale of the same will unfairly and unjustly deprive them of shelter and render them destitute and homeless a loss which cannot be compensated monetarily. Additionally, that they stand to suffer great loss and damage in the event that the land is sold. He urged the court allow the application as they have demonstrated a prima facie case with probability of success.
Replying Affidavit
8. The 1st defendant/respondents’ Assistant Legal Manager, Louis Omukhulu filed a Replying Affidavit dated 4th June 2025 in response to the application. He deponed that the application is an abuse of the court processing that the Plaintiffs/Applicants have feigned ignorance of their obligations under the loans granted to them by the Bank and have also deliberately misrepresented and /or withheld relevant material facts which are well within their knowledge with a view to misleading this Court to grant an Order of injunction. He stated that the Plaintiffs/Applicants have deliberately concealed from the Honourable Court the following facts:
(i) Pursuant to an initial application for injunction dated 23/8/2023 the Plaintiffs/Applicants sought to stop the intended sale of the suit properties and the Honourable Court through a Ruling delivered on the 30/4/2024 dismissed the said application with costs to the Bank. He annexed and marked as "LO-1" is a copy of the Honourable Court''s Ruling dated 30/4/2024.
(ii) Subsequent to the delivery of Ruling, the Bank advertised the suit properties for sale by way of public auction and it is this action that prompted the Plaintiffs/Applicant to singularly approach the Court with the aim of obtaining injunctive orders. He annexed and marked as "LO-2" a copy of the Daily Nation Newspaper advertisement of 23/5/2025.
(iii) All of the Plaintiffs''/Applicants'' allegations were substantively traversed in the Replying Affidavit filed in reply to the Plaintiffs/Applicants initial application dated 23/8/2023 and which facts demonstrated the correct position.
9. The deponent averred that what comes out clearly is that; The Plaintiffs/Applicants do not deny that they owe the Bank an astronomical sum of money. Their argument is that they do not know how much they owe, and in the meantime, they have not bothered to pay the sum that they do not dispute. Further, as per the provisions of the various Letters of Offer in Annexure II and Schedule 2 and the Charge documents, the suit properties were securities for ail the borrowings on the part of 5th & 6th Plaintiffs/Applicants. That the interest rates and charges levied were wholly contractual as set out in Clauses 4, 5 & 6 of the Letters of Offer and Charge documents. That the Statutory Notices were all served upon the Plaintiffs/Applicants in their capacities as Chargors, Borrowers and Directors of the Borrowing Companies.
10. He deponed that it is instructive that the 5th & 6th Plaintiffs/Applicants accounts, as per the statements annexed, have been in default for years. The Plaintiffs/Applicants did not at any time complain about bank charges, interest rates etc. and their attempt to now make an issue of the same is clearly an afterthought and a fabrication as the Plaintiffs/Applicants have not annexed any audit report to counter and disprove the statements of accounts from the Bank as not being reflective of their true indebtedness.
11. The deponent averred that due process and diligence has been followed by the Bank in the process geared towards the exercise of the power of sale hence the Plaintiffs/Applicants have miserably failed on prima facie basis to prove any illegality or irregularity on the part of the Bank and there is no valid ground to interfere with the exercise of the Bank''s rights under the Charge Instruments. Further, that there is no legal substance in the application warranting the Honourable Court to interfere as the Plaintiff/ Applicant has not discharged the onus of establishing on a prima facie basis that his rights have been infringed by the Bank but has deliberately failed to disclose that he has failed to service the loans for years. He reiterated that the Bank has adhered strictly to the law applicable to financial facilities to the Plaintiff/Applicant and has been prejudiced by the fact that it could not recover the sums due and owing to it prompting the Bank to kick-start the statutory process leading to the exercise of its statutory power of sale.
12. He stated that the Plaintiffs/Applicants are seeking an equitable remedy, that is an injunction, but the Bank has a statutory right of action whose process it has commenced. The Plaintiffs/Applicants have not demonstrated in any way that they have an arguable case, or that they have a prima facie case with any probability of success or that any loss they may suffer cannot be compensated in damages. Further the balance of convenience favours the Bank in view of the fact that the monies owed by the 5th& 6th Plaintiffs/Applicants are depositor''s funds which were entrusted to the Bank and which the Bank has a duty to safeguard.
13. The Respondent stated that the outstanding loan sum continues to accrue interest to a point where there is negative equity in that the loan sum has outstripped the value of the suit properties yet the Plaintiffs/Applicants have not offered any security. The foregoing notwithstanding, should the court is inclined to issue an injunction in favour of the Plaintiffs/Applicants, the respondent requested the court that the same be upon payment of the admitted outstanding sums to reduce the outstanding facilities. He urged the court to dismiss the application with costs.
14. Both parties did not file submissions but stated that they would be relying on their respective pleadings and the court proceeded accordingly.
Analysis & Determination
15. The issue for determination is whether the court should grant orders for a temporary injunction. In determining this issue, it is important to note that the Applicant herein had initially applied for a permanent injunction vide an application dated 22nd August 2023 wherein the defendant bank filed a Replying Affidavit dated 20th April 24 in response thereto. The said Affidavit contains the evidence that the Respondent now seeks to rely on in this Application also, together with the facts deposed in the Replying Affidavit of the 1st defendant/respondents’ Assistant Legal Manager, Louis Omukhulu dated 4th June 2025 and has referenced the court to that initial Affidavit. Since the same is indeed already on record and is a part of the record of the court, I have referred to it to establish whether there was compliance with the requirements for the exercise of the statutory power of sale by the Respondent.
16. The court will proceed in this manner, in light of the fact that the Applicant herein has filed this fresh Application for injunction despite the court dismissing their earlier application arguing that the initial application was dismissed by the court on a technicality for reasons that the court found that initial application to be misconceived for reasons that the Applicant had therein sought for a permanent injunction at the interlocutory stage. This indeed was the gist of the court’s determination in that initial Application and so in this instant Application now before the court, it will now proceed and look to the substance and merits of the same.
17. From the initial Replying Affidavit dated 20th April 2024, it is deposed that the applicants were granted credit facilities amounting to a total of Kshs. 99,911,987 as evidenced by the letters of offer dated 13th July 2015, 29th September 2015, 07th March 2016, 06th may 2016, 16th May 2016, 25th May 2017 and 29th March 2019 which were marked as LOS 2-8. That subsequently, the applicants registered charges over the subject properties as follows; Nandi Chepterit/109 on 21/04/16, Sergoit Elgeyo Border block 1 (Beliomo) 272 on 21/04/16, Mombasa M/S Block 1/23 on 17/05/16 and MN/11/6165 Grant No. CR 45544 on 09/06/16
18. It is therein deposed that upon default, the defendants issued notices under the Land Act 2012, as follows,
a) 90 days’ Statutory Notice dated 25th August 2017 that was served upon the 1st, 2nd, 4th, 5th & 6th Applicants by Registered mail together with proof of registered postage marked as annexures LO 20(a)-(e)
b) 40 days’ Notice to Sell dated 25th November 2017 that was served upon the 1st, 2nd, 4th, 5th & 6th Applicants by Registered mail together with proof of registered postage marked as annexures LO 21(a) - (e)
c) 45 Days Redemption Notice and Notifications of Sale issued through its agents’ M/S Saddabari Auctioneers dated 29th November 2017 that was served upon the 1st, 2nd, 4th, 5th & 6th Applicants and which notices failed to elicit any response. The same together with proof of registered postage were annexed as LO 22(a)- (e)
d) The properties were physically visited and M/S Acumen Valuers Limited prepared a Valuation Reports dated 13th July 2023 were annexed as LO 23(a) – (c)
19. I have considered the Further Affidavit filed by the Applicant in the initial Application as well as the facts deposed in the Affidavit in support of the instant Application. I note that the fact of service of all the requisite Notices upon the Applicants has not been strenuously opposed. The only averments that have been made are in the Further Affidavit is that no proof of service by way of postage was availed by the Respondent. The court however notes as has been above summarised that every copy of the notices issued was accompanied by a certificate of postage whose contents were not at all rebutted and/or challenged.
20. The law governing the granting of interlocutory injunction is as set out under Order 40(1) (a) and (b) of the Civil Procedure Rules 2010 which provides that: -
"Where in any suit it is proved by affidavit or otherwise—
(a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or [Rev. 2012] Civil Procedure CAP. 21 [Subsidiary] C17 – 165;
(b) That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further."
21. The conditions that party seeking for the grant of an order of an interlocutory injunction must satisfy are well settled and are as laid out in the celebrated case of Giella v Cassman Brown & Company Limited (1973) EA 358 and they are as follows: -
"Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience."
22. What the court ought to construe to be a prima facie case is as was defined in Mrao Limited v First American Bank of Kenya (2003) KLR 125 as follows;
“A prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later…..A prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard which is higher that an arguable case.”
23. The burden of proving a “prima facie” case would invariable lie on the Applicant. In that regard, the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen and 2 others (2014) eKLR, stated that: -
“the party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion.”
24. The court went further to state that: -
“we reiterate that in considering whether or not a prima facie case has been established, the court does not hold a minitrial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation.
Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The Applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges.”
25. Again, the Court of Appeal proceeded to state that: -
“the standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the court takes the view that on the face of it the Applicant’s case is more likely than not to ultimately succeed.”
26. Before a Chargee can exercise its statutory power of sale, the law requires it to issue notices to the Chargor as follows:
a) 90 days’ statutory notice of default, pursuant to Section 90(1) and (2) of the Land Act, 2012.
b) 40 days’ notice of intention to sell, pursuant to Section 96(2) of the Land Act, 2012.
c) 45 days’ redemption notice pursuant to Rule 15(d) of the Auctioneers’ Rules, 1997.
d) 14 days’ notification of sale, pursuant to Rule 25(e) of the Auctioneers’ Rules, 1997.
27. In regard to (a) above, Section 90 aforesaid provides as follows:
(1) If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.
(2) ……
(3) If the chargor does not comply within ninety days after the date of service of the notice under, subsection (1), the chargee may —
(a) sue the chargor for any money due and owing under the charge;
(b) appoint a receiver of the income of the charged land;
(c) lease the charged land, or if the charge is of a lease, sublease the land;
(d) enter into possession of the charged land; or
(e) sell the charged land;
28. On the issue of service of the notices, the Court of Appeal pronounced itself on the issue of proof of service in the case of Nyagilo Ochieng & Another vs. Kenya Commercial Bank Limited [1996] eKLR, where the court made the following observation:
"…….. Unless the receipt of statutory notice is admitted, posting thereof must be proved and upon production of such proof the burden of proving non-receipt of such notice or notices shifts to the addressee as is contemplated by section 3(5) of the Interpretation and General Provisions Act, Cap 2, Laws of Kenya."
29. On valuation of the properties, Section 97(1) and (2) of the Land Act provide as follows:
“(1) A chargee who exercises a power to sell the charged land, including the exercise of the power to sell in pursuance of an order of a court, owes a duty of care to the chargor, any guarantor of the whole or any part of the sums advanced to the chargor, any chargee under a subsequent charge or under a lien to obtain the best price reasonably obtainable at the time of sale”.
(2) A chargee shall, before exercising the right of sale, ensure that a forced sale valuation is undertaken by a valuer.
30. All the above considered, it should be noted further that an injunction is an equitable remedy and a party seeking that the court acts in their favour in any such application must not only satisfy the conditions for the granting of an injunction as already laid out in the cited case law, but must also demonstrate more particularly that they have come to court timeously, in good faith and with clean hands in order that the court may look at them with an eye of equity. That said then, can the court safely conclude that this applicant by his conduct deserves that the court looks at his application with such an eye?
31. In answering this question, the court notes that even as the Applicant in their Application states that the loan amount is exaggerated, that the said amount contravenes the duplum rule, that it is therefore necessary that an audit of what was loaned vis~a~vis what is being demanded be done, that the charged properties are matrimonial properties and that the court should consider that the applicants have also filed a counterclaim and that by the Respondents proceeding to re-advertise the properties for sale after the court dismissed their application on a technicality is intended to steal a match from the applicant’s, the court also and more significantly notes that the Applicant has not at all demonstrated what attempts they have made to pay even the amount that they do not dispute. In fact, the court notes that the loan amount in dispute in the instant application stands at the exact amount that it was in the previous Application. This in my view does not demonstrate good faith on the part of the Applicant who in my considered opinion has not come to court with clean hands.
32. Further to the above, from my summation of the issuance and service of the requisite notices by the Respondents upon the applicants, I am satisfied that the same have prima facie demonstrated that the Applicants were in arrears of the loan advanced, they was duly and properly notified of the fact of the arrears as is required by statute and they ignored the said notification and did not make any attempts to defray the loan amount, that they were thereafter served with all the requisite Statutory Notices as is required of the Respondent under the Land Act, 2012 and they also ignored all these notices and only waited to rush to court at the eleventh hour when the realization of the securities charged by the Respondent was imminent. Such conduct in my well-considered opinion flies against all the relevant doctrines of equity that would persuade a court to exercise discretion in favour of these Applicants.
33. In light of the above, it is my finding that the Applicant has failed to demonstrate that he has a prima facie case with a high probability of success as envisaged in the Mrao Limited case (supra). This being the case then, as was held in the case of Nguruman Limited v Jan Bonde Neilsen that if a prima facie case is not established, then the court need not consider the other two pillars that a party needs to surmount in order to qualify for the grant of an order of injunction, the same being irreparable loss and balance of convenience. The upshot therefore is that the Applicants’ Application for the grant of an injunction pending the hearing of the main suit lacks merit and the same is accordingly dismissed in its entirety with costs to the Respondents.
Read Dated and Signed at ELDORET on 30th October 2025.
'
1) Spent
2) Spent
3) That a temporary injunction do issue restraining the Defendants/Respondents, their agents, servants and/or employees from advertising, offering for sale by way of public auction or private treaty and/or transferring, disposing off and/or in any manner dealing with all that Parcel of Land known as Parcels of Land known as LR. NO. MOMBASA/MS BLOCK 1/253, LR NO. NANDI/CHEPTARIT/109, ELGEYO BORDER BLOCK 1 (BELIOMO) /272, LR NO. MN/11/6165 ORIGINAL GRANTNUMBERCR 45544 pending the hearing and determination of the main suit.
4) That costs be provided for.
2. The application is expressed to be brought under order 40 Rule (1), (2) and 9, Order 20 Rule 4 of the Civil Procedure Rules 2010 as read with Sections 1 A, 3 and 3 (A), 63 (e) of the Civil Procedure Act Chapter 21 Laws of Kenya, Rules 15 and 16 of the Auctioneer Rules 1997 and all other enabling provisions of the law.
3. The application is premised on the grounds on the face of it and the averments in the affidavit of the 1st Applicant, Henry Lelei.
4. In his affidavit, the deponent averred that he was the director of the 5th and 6th Applicants and further, that he had the authority of the 2nd and 3rd Plaintiffs/Applicants to swear the affidavit on their behalf. He annexed a copy of the board resolutions marked as HL1''. He stated that together with the 2nd and the 4th Plaintiff, they charged land parcel LR. MOMBASA/MS BLOCK 1/253, LR NO. NANDI/CHEPTARIT/109, ELGEYO BORDER BLOCK (BELIOMO)/272, LR NO. MN/11/6165 ORIGINAL GRANT NUMBERCR. 45544 for a loan of Kshs. 40,000,000/= advanced to the 5th plaintiff and 20,000,000/= and an overdraft of Kshs. 10,000,000/= advanced to the 6th plaintiff by the 1st defendant. He annexed a copy of title, search certificate and certificates of registration of mortgages and charges marked as HL ‘2’.
5. The deponent averred that they had filed their application dated 23rd August, 2023 which was dismissed on a technicality on 30th October, 2024 as the prayers sought were misconceived and bad in law. He annexed a copy of the ruling marked as HL ''3''. That the matter went through the pre trials and is set for hearing of the main suit on 26th day of May, 2025 and the defendants advertised the suit properties for sale by way of public auction. He urged that the defendants'' advertisement of the suit land for sale by way of public auction is dishonest and an attempt to steal a match from them and dispose of their suit as they have already filed a counterclaim in court for the same amount of Kshs. 189,644,873.30/= they claim as arrears and therefore the sale will amount to double jeopardy, annexing and marking the counter claim as HL5.
6. He urged that the defendants have inflated the loan arrears they claim is owed by the 5th and 6th plaintiffs as they have in the redemption notices and notifications of sale indicated the amount owing as Kshs. 189,644,873.30/= which is impossible as the principal sum borrowed was Kshs. 78,000,000/= out of which Kshs. 40,000,000/= and a calculation of the unpaid principal sum and interest cannot reasonably amount to the sum demanded and which issues are pending determination in the main suit.
7. The deponent averred that the orders of injunction are paramount to preserve the suit land as the suit will be disposed of and overtaken by events if the same is sold before the same is determined. Further, that the intended sale by way of Public Auction is in bad faith as the defendants have a counterclaim and therefore will not suffer from any prejudice if the orders sought are granted. He stated that the charged properties have their family/matrimonial houses where the families live and sale of the same will unfairly and unjustly deprive them of shelter and render them destitute and homeless a loss which cannot be compensated monetarily. Additionally, that they stand to suffer great loss and damage in the event that the land is sold. He urged the court allow the application as they have demonstrated a prima facie case with probability of success.
Replying Affidavit
8. The 1st defendant/respondents’ Assistant Legal Manager, Louis Omukhulu filed a Replying Affidavit dated 4th June 2025 in response to the application. He deponed that the application is an abuse of the court processing that the Plaintiffs/Applicants have feigned ignorance of their obligations under the loans granted to them by the Bank and have also deliberately misrepresented and /or withheld relevant material facts which are well within their knowledge with a view to misleading this Court to grant an Order of injunction. He stated that the Plaintiffs/Applicants have deliberately concealed from the Honourable Court the following facts:
(i) Pursuant to an initial application for injunction dated 23/8/2023 the Plaintiffs/Applicants sought to stop the intended sale of the suit properties and the Honourable Court through a Ruling delivered on the 30/4/2024 dismissed the said application with costs to the Bank. He annexed and marked as "LO-1" is a copy of the Honourable Court''s Ruling dated 30/4/2024.
(ii) Subsequent to the delivery of Ruling, the Bank advertised the suit properties for sale by way of public auction and it is this action that prompted the Plaintiffs/Applicant to singularly approach the Court with the aim of obtaining injunctive orders. He annexed and marked as "LO-2" a copy of the Daily Nation Newspaper advertisement of 23/5/2025.
(iii) All of the Plaintiffs''/Applicants'' allegations were substantively traversed in the Replying Affidavit filed in reply to the Plaintiffs/Applicants initial application dated 23/8/2023 and which facts demonstrated the correct position.
9. The deponent averred that what comes out clearly is that; The Plaintiffs/Applicants do not deny that they owe the Bank an astronomical sum of money. Their argument is that they do not know how much they owe, and in the meantime, they have not bothered to pay the sum that they do not dispute. Further, as per the provisions of the various Letters of Offer in Annexure II and Schedule 2 and the Charge documents, the suit properties were securities for ail the borrowings on the part of 5th & 6th Plaintiffs/Applicants. That the interest rates and charges levied were wholly contractual as set out in Clauses 4, 5 & 6 of the Letters of Offer and Charge documents. That the Statutory Notices were all served upon the Plaintiffs/Applicants in their capacities as Chargors, Borrowers and Directors of the Borrowing Companies.
10. He deponed that it is instructive that the 5th & 6th Plaintiffs/Applicants accounts, as per the statements annexed, have been in default for years. The Plaintiffs/Applicants did not at any time complain about bank charges, interest rates etc. and their attempt to now make an issue of the same is clearly an afterthought and a fabrication as the Plaintiffs/Applicants have not annexed any audit report to counter and disprove the statements of accounts from the Bank as not being reflective of their true indebtedness.
11. The deponent averred that due process and diligence has been followed by the Bank in the process geared towards the exercise of the power of sale hence the Plaintiffs/Applicants have miserably failed on prima facie basis to prove any illegality or irregularity on the part of the Bank and there is no valid ground to interfere with the exercise of the Bank''s rights under the Charge Instruments. Further, that there is no legal substance in the application warranting the Honourable Court to interfere as the Plaintiff/ Applicant has not discharged the onus of establishing on a prima facie basis that his rights have been infringed by the Bank but has deliberately failed to disclose that he has failed to service the loans for years. He reiterated that the Bank has adhered strictly to the law applicable to financial facilities to the Plaintiff/Applicant and has been prejudiced by the fact that it could not recover the sums due and owing to it prompting the Bank to kick-start the statutory process leading to the exercise of its statutory power of sale.
12. He stated that the Plaintiffs/Applicants are seeking an equitable remedy, that is an injunction, but the Bank has a statutory right of action whose process it has commenced. The Plaintiffs/Applicants have not demonstrated in any way that they have an arguable case, or that they have a prima facie case with any probability of success or that any loss they may suffer cannot be compensated in damages. Further the balance of convenience favours the Bank in view of the fact that the monies owed by the 5th& 6th Plaintiffs/Applicants are depositor''s funds which were entrusted to the Bank and which the Bank has a duty to safeguard.
13. The Respondent stated that the outstanding loan sum continues to accrue interest to a point where there is negative equity in that the loan sum has outstripped the value of the suit properties yet the Plaintiffs/Applicants have not offered any security. The foregoing notwithstanding, should the court is inclined to issue an injunction in favour of the Plaintiffs/Applicants, the respondent requested the court that the same be upon payment of the admitted outstanding sums to reduce the outstanding facilities. He urged the court to dismiss the application with costs.
14. Both parties did not file submissions but stated that they would be relying on their respective pleadings and the court proceeded accordingly.
Analysis & Determination
15. The issue for determination is whether the court should grant orders for a temporary injunction. In determining this issue, it is important to note that the Applicant herein had initially applied for a permanent injunction vide an application dated 22nd August 2023 wherein the defendant bank filed a Replying Affidavit dated 20th April 24 in response thereto. The said Affidavit contains the evidence that the Respondent now seeks to rely on in this Application also, together with the facts deposed in the Replying Affidavit of the 1st defendant/respondents’ Assistant Legal Manager, Louis Omukhulu dated 4th June 2025 and has referenced the court to that initial Affidavit. Since the same is indeed already on record and is a part of the record of the court, I have referred to it to establish whether there was compliance with the requirements for the exercise of the statutory power of sale by the Respondent.
16. The court will proceed in this manner, in light of the fact that the Applicant herein has filed this fresh Application for injunction despite the court dismissing their earlier application arguing that the initial application was dismissed by the court on a technicality for reasons that the court found that initial application to be misconceived for reasons that the Applicant had therein sought for a permanent injunction at the interlocutory stage. This indeed was the gist of the court’s determination in that initial Application and so in this instant Application now before the court, it will now proceed and look to the substance and merits of the same.
17. From the initial Replying Affidavit dated 20th April 2024, it is deposed that the applicants were granted credit facilities amounting to a total of Kshs. 99,911,987 as evidenced by the letters of offer dated 13th July 2015, 29th September 2015, 07th March 2016, 06th may 2016, 16th May 2016, 25th May 2017 and 29th March 2019 which were marked as LOS 2-8. That subsequently, the applicants registered charges over the subject properties as follows; Nandi Chepterit/109 on 21/04/16, Sergoit Elgeyo Border block 1 (Beliomo) 272 on 21/04/16, Mombasa M/S Block 1/23 on 17/05/16 and MN/11/6165 Grant No. CR 45544 on 09/06/16
18. It is therein deposed that upon default, the defendants issued notices under the Land Act 2012, as follows,
a) 90 days’ Statutory Notice dated 25th August 2017 that was served upon the 1st, 2nd, 4th, 5th & 6th Applicants by Registered mail together with proof of registered postage marked as annexures LO 20(a)-(e)
b) 40 days’ Notice to Sell dated 25th November 2017 that was served upon the 1st, 2nd, 4th, 5th & 6th Applicants by Registered mail together with proof of registered postage marked as annexures LO 21(a) - (e)
c) 45 Days Redemption Notice and Notifications of Sale issued through its agents’ M/S Saddabari Auctioneers dated 29th November 2017 that was served upon the 1st, 2nd, 4th, 5th & 6th Applicants and which notices failed to elicit any response. The same together with proof of registered postage were annexed as LO 22(a)- (e)
d) The properties were physically visited and M/S Acumen Valuers Limited prepared a Valuation Reports dated 13th July 2023 were annexed as LO 23(a) – (c)
19. I have considered the Further Affidavit filed by the Applicant in the initial Application as well as the facts deposed in the Affidavit in support of the instant Application. I note that the fact of service of all the requisite Notices upon the Applicants has not been strenuously opposed. The only averments that have been made are in the Further Affidavit is that no proof of service by way of postage was availed by the Respondent. The court however notes as has been above summarised that every copy of the notices issued was accompanied by a certificate of postage whose contents were not at all rebutted and/or challenged.
20. The law governing the granting of interlocutory injunction is as set out under Order 40(1) (a) and (b) of the Civil Procedure Rules 2010 which provides that: -
"Where in any suit it is proved by affidavit or otherwise—
(a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or [Rev. 2012] Civil Procedure CAP. 21 [Subsidiary] C17 – 165;
(b) That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further."
21. The conditions that party seeking for the grant of an order of an interlocutory injunction must satisfy are well settled and are as laid out in the celebrated case of Giella v Cassman Brown & Company Limited (1973) EA 358 and they are as follows: -
"Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience."
22. What the court ought to construe to be a prima facie case is as was defined in Mrao Limited v First American Bank of Kenya (2003) KLR 125 as follows;
“A prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later…..A prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard which is higher that an arguable case.”
23. The burden of proving a “prima facie” case would invariable lie on the Applicant. In that regard, the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen and 2 others (2014) eKLR, stated that: -
“the party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion.”
24. The court went further to state that: -
“we reiterate that in considering whether or not a prima facie case has been established, the court does not hold a minitrial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation.
Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The Applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges.”
25. Again, the Court of Appeal proceeded to state that: -
“the standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the court takes the view that on the face of it the Applicant’s case is more likely than not to ultimately succeed.”
26. Before a Chargee can exercise its statutory power of sale, the law requires it to issue notices to the Chargor as follows:
a) 90 days’ statutory notice of default, pursuant to Section 90(1) and (2) of the Land Act, 2012.
b) 40 days’ notice of intention to sell, pursuant to Section 96(2) of the Land Act, 2012.
c) 45 days’ redemption notice pursuant to Rule 15(d) of the Auctioneers’ Rules, 1997.
d) 14 days’ notification of sale, pursuant to Rule 25(e) of the Auctioneers’ Rules, 1997.
27. In regard to (a) above, Section 90 aforesaid provides as follows:
(1) If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.
(2) ……
(3) If the chargor does not comply within ninety days after the date of service of the notice under, subsection (1), the chargee may —
(a) sue the chargor for any money due and owing under the charge;
(b) appoint a receiver of the income of the charged land;
(c) lease the charged land, or if the charge is of a lease, sublease the land;
(d) enter into possession of the charged land; or
(e) sell the charged land;
28. On the issue of service of the notices, the Court of Appeal pronounced itself on the issue of proof of service in the case of Nyagilo Ochieng & Another vs. Kenya Commercial Bank Limited [1996] eKLR, where the court made the following observation:
"…….. Unless the receipt of statutory notice is admitted, posting thereof must be proved and upon production of such proof the burden of proving non-receipt of such notice or notices shifts to the addressee as is contemplated by section 3(5) of the Interpretation and General Provisions Act, Cap 2, Laws of Kenya."
29. On valuation of the properties, Section 97(1) and (2) of the Land Act provide as follows:
“(1) A chargee who exercises a power to sell the charged land, including the exercise of the power to sell in pursuance of an order of a court, owes a duty of care to the chargor, any guarantor of the whole or any part of the sums advanced to the chargor, any chargee under a subsequent charge or under a lien to obtain the best price reasonably obtainable at the time of sale”.
(2) A chargee shall, before exercising the right of sale, ensure that a forced sale valuation is undertaken by a valuer.
30. All the above considered, it should be noted further that an injunction is an equitable remedy and a party seeking that the court acts in their favour in any such application must not only satisfy the conditions for the granting of an injunction as already laid out in the cited case law, but must also demonstrate more particularly that they have come to court timeously, in good faith and with clean hands in order that the court may look at them with an eye of equity. That said then, can the court safely conclude that this applicant by his conduct deserves that the court looks at his application with such an eye?
31. In answering this question, the court notes that even as the Applicant in their Application states that the loan amount is exaggerated, that the said amount contravenes the duplum rule, that it is therefore necessary that an audit of what was loaned vis~a~vis what is being demanded be done, that the charged properties are matrimonial properties and that the court should consider that the applicants have also filed a counterclaim and that by the Respondents proceeding to re-advertise the properties for sale after the court dismissed their application on a technicality is intended to steal a match from the applicant’s, the court also and more significantly notes that the Applicant has not at all demonstrated what attempts they have made to pay even the amount that they do not dispute. In fact, the court notes that the loan amount in dispute in the instant application stands at the exact amount that it was in the previous Application. This in my view does not demonstrate good faith on the part of the Applicant who in my considered opinion has not come to court with clean hands.
32. Further to the above, from my summation of the issuance and service of the requisite notices by the Respondents upon the applicants, I am satisfied that the same have prima facie demonstrated that the Applicants were in arrears of the loan advanced, they was duly and properly notified of the fact of the arrears as is required by statute and they ignored the said notification and did not make any attempts to defray the loan amount, that they were thereafter served with all the requisite Statutory Notices as is required of the Respondent under the Land Act, 2012 and they also ignored all these notices and only waited to rush to court at the eleventh hour when the realization of the securities charged by the Respondent was imminent. Such conduct in my well-considered opinion flies against all the relevant doctrines of equity that would persuade a court to exercise discretion in favour of these Applicants.
33. In light of the above, it is my finding that the Applicant has failed to demonstrate that he has a prima facie case with a high probability of success as envisaged in the Mrao Limited case (supra). This being the case then, as was held in the case of Nguruman Limited v Jan Bonde Neilsen that if a prima facie case is not established, then the court need not consider the other two pillars that a party needs to surmount in order to qualify for the grant of an order of injunction, the same being irreparable loss and balance of convenience. The upshot therefore is that the Applicants’ Application for the grant of an injunction pending the hearing of the main suit lacks merit and the same is accordingly dismissed in its entirety with costs to the Respondents.
Read Dated and Signed at ELDORET on 30th October 2025.
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