By Notice of Motion dated 7th November 2024, brought Order 40 Rule 1(a), 2 & 4 of the Civil Procedure Rules and Section 1A, 1B and 3A of the Civil Procedure Act, the plaintiff /applicant moved this court seeking mainly the following Orders;
1 … Spent
2 … Spent
3 THAT a temporary injunction do issue pending the hearing and determination of this application restraining the defendant/respondent, its agent and/or assigns or any of them from advertising for sale, disposing of, selling or otherwise interfering with Land L.R NO NGONG/NGONG/47561 Within Kajiado County
4 THAT an order of injunction do issue pending the hearing and determination of this suit restraining the defendant/respondent, its agent and/or assigns or any of them from advertising for sale, disposing of, selling or otherwise interfering with Land L.R NO NGONG/NGONG/47561 Within Kajiado County
5 THAT the cost of this suit be paid by the defendant/respondent.
The application is based on the grounds on the face of the application and the supporting affidavit of Mary Akinyi Ambasa sworn the even date. The applicant aver that she was an employee of the defendant and that during the course of employment she took a mortgage facility of Ksh. 4,100,550 to finance the purchase of the suit property with an agreement that the loan facility would be paid in monthly instalments of 28,986 inclusive interest for a period of 300 months. The applicant resigns from the defendant employment and sought to renegotiate the mortgage repayment with the defendant. According to her it was orally agreed between the parties that she could pay whatever should could afford.
The applicant contend agrees that she was served with the notification for sale of the suit property which was scheduled for 29th November 2024 and successfully obtained an interim order of injunction. The applicant aver that she was never served with three months statutory notice of sale as required by law but received 45 days’ notice from the auctioneer requiring payment of 6,466,402.90 which amount she had no idea how it was arrived at. Secondly, the sale value quoted by the respondent is inordinately low and if allowed to proceed, the plaintiff shall suffer irreparable harm.
The respondent filed a replying affidavit sworn by Evaline Chepkoech dated 13th march 2025 in response to the applicant application and stated that indeed it is true that the applicant obtained at her request a loan facility from the respondent Bank for the sum of Ksh 4,100,550 vide offer letter dated 1st February 2011 and accepted the facility on the terms and conditions contained in the aforementioned offer letter. The facility was secured through a legal charge over LR NGONG/NGONG/45561. The applicant sought and was granted additional facility of Ksh 1,699,450 which was secured by a further legal charge over the same property. The respondent aver that it was an express term of the charged documents that all monies, obligations and liabilities secured by the charge shall immediately become due and payable on demand if the chargor fails to pay when demanded or fails to comply with the terms of the loan facility. That on 19th July 2021, the plaintiff/applicant house and personal secured loans were amalgamated at her request.
The applicant loan account fell into arrears and as at 26th November 2024 the outstanding amount due and owing stood at ksh.6,616,894.15 which amount continue to accrue interest. The respondent avers that as a result of non-payment of the loan amount, the respondent served the applicant with the rectification notice under section 90 of the Land Act 2012, the notice of intention to sell under section 96 of the Land Act and redemption notice under Rule 15 (d) of the auctioneers Rule 1997. After the rectification notice was issued, the respondent served upon the applicant a notice of intention to sale as provided for under section 96 (2) and (3) of the land Act.
The respondent stated that a valuation of the property was done and a copy of the valuation report dated 29th august 2024 attached and that after all the statutory notices were issued and served upon the applicant, the property was advertised for sale vide daily Nation Newspaper of 5th November 2024.
It is argued that the applicant has not placed before the court any material evidence of infringement of her right by the respondent in exercise of the statutory power of sale neither is there any cause of action against the respondent. That the loan contract confers upon the party’s rights and obligations which includes the obligation by the applicant to repay the loan facility according to the terms of the contract.
Upon service of the replying affidavit dated 12th march 2025, the applicant counsel sought for time to file submissions thereto. As at the time of writing this ruling the applicant has neither filed any further response to the respondent aforementioned replying affidavit nor its submissions as had undertaken.
Respondent Submissions
I have considered the respondent submissions filed on 12th March 2026 together with the authorities supplied.
The principles for granting a temporary injunction were well settled in the case Giella vs. Cassman Brown & Co. Ltd [1973] EA 358 and expounded in the case of Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR where the Court stated the law as follows:
“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.
“…these are the three pillars on which rest 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… 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 are 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.”
In Mrao vs First American Bank Of Kenya Limited & 2 others (2003) eklr, the court defined prima facie as;
“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…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 than arguable case”
Court of Appeal in Nguruman Limited vs Jan Bonde Nielsen & 2 0thers (2014) eklr (supra) had this to say:
“we adopt the definition save to add the following conditions by way of explanting it. 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 there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. we reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial 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 threatened with violation.”
In the instant matter, there is no dispute that the applicant a former employee of the defendant had applied for and was granted loan amount initially of Ksh 4,100, 550 with an additional facility of 1,699,450 extended all secured by a legal charge over her property LR.NO NGONG/NGONG/47561. It is also not in dispute that the applicant who resigned from the defendant employment defaulted in repayment of the loan advanced and sought to engage the defendant on review of the interest rate and the monthly repayment based on her current income. The respondent also contend that she was not served with the three months statutory notice and that the property was undervalued.
I have looked at the defendants list of documents dated 16th January 2026 which clearly shows that the three Months statutory notice and all the other notices were sent to the applicant via her two known addresses, i.e. P.O BOX 928-00206 Kiserian and P.O BOX 30081-00100 Nairobi. This is the same address in the applicant supporting affidavit dated 7th November 2024. The applicant contention in paragraph 6 of her supporting affidavit that she has been paying for the loan facility is not supported by evidence. There are no annexures of the status of her loan account with the respondent and a mere statement that the amount owing is disputed is not a basis for the court to intervene. Disputes regarding interest rates, calculations or the exact amount due is not sufficient basis for halting a legal process properly commenced by a lender to realise the security. The applicant is bound by the terms and conditions of the contract and unless shown that her rights to property as a borrower have been or are likely to be infringed by a lender, an injunction to restrain a proper exercise of statutory power of sale should not be hindered. The applicant in not so serious a manner aver she did not understand how the bank arrived at the outstanding loan considering that the respondent has never responded to her request regarding negotiations of the mortgage terms without placing any material evidence of what she had paid and what in her view is due and owing.
If the loan is in dispute, and it is not in this case, the onus is on the applicant to show that it is disputed on substantial and bona fide ground and demonstrate a prima facie case so as to deserve an order of injunction. To merely state that her current salary is inadequate to meet the monthly instalment without offering a concrete proposal on how to settle the loan amount cannot be a reason to injunct the defendant.
In John Nduati Kariuki T/A Johester Merchants vs National Bank of Kenya (2006) eklr the court stated;
“The legal issue however is whether the dispute on the outstanding loan can scuttle the exercise by a chargee of its power of sale. On that legal proposition this court has expressed itself before and we need only refer to J.L.Luvuna & others vs Civil Servants Housing Co. Ltd & Another CA NAI 14/95 where it was stated per Kwach J.A “ I have always understood the law to be that a court should not grant an injunction restaring a morgagee from execising its statutory power of sale solely on the grounds there is a dispute as to amount under the mortgage”
In the circumstances therefore, I find that the plaintiff/applicant has not established a prima facies case with any probability of success. As I am persuaded that the first hurdle has not be surmounted, then invitation to consider the other two pillars on the adequacy of damages and the balance of convenience is declined.
Consequently, the application dated 7th November 2024 is Dismissed with the Cost and the interim Order issued by this court on 21st November 2024 is hereby discharged.
1 … Spent
2 … Spent
3 THAT a temporary injunction do issue pending the hearing and determination of this application restraining the defendant/respondent, its agent and/or assigns or any of them from advertising for sale, disposing of, selling or otherwise interfering with Land L.R NO NGONG/NGONG/47561 Within Kajiado County
4 THAT an order of injunction do issue pending the hearing and determination of this suit restraining the defendant/respondent, its agent and/or assigns or any of them from advertising for sale, disposing of, selling or otherwise interfering with Land L.R NO NGONG/NGONG/47561 Within Kajiado County
5 THAT the cost of this suit be paid by the defendant/respondent.
The application is based on the grounds on the face of the application and the supporting affidavit of Mary Akinyi Ambasa sworn the even date. The applicant aver that she was an employee of the defendant and that during the course of employment she took a mortgage facility of Ksh. 4,100,550 to finance the purchase of the suit property with an agreement that the loan facility would be paid in monthly instalments of 28,986 inclusive interest for a period of 300 months. The applicant resigns from the defendant employment and sought to renegotiate the mortgage repayment with the defendant. According to her it was orally agreed between the parties that she could pay whatever should could afford.
The applicant contend agrees that she was served with the notification for sale of the suit property which was scheduled for 29th November 2024 and successfully obtained an interim order of injunction. The applicant aver that she was never served with three months statutory notice of sale as required by law but received 45 days’ notice from the auctioneer requiring payment of 6,466,402.90 which amount she had no idea how it was arrived at. Secondly, the sale value quoted by the respondent is inordinately low and if allowed to proceed, the plaintiff shall suffer irreparable harm.
The respondent filed a replying affidavit sworn by Evaline Chepkoech dated 13th march 2025 in response to the applicant application and stated that indeed it is true that the applicant obtained at her request a loan facility from the respondent Bank for the sum of Ksh 4,100,550 vide offer letter dated 1st February 2011 and accepted the facility on the terms and conditions contained in the aforementioned offer letter. The facility was secured through a legal charge over LR NGONG/NGONG/45561. The applicant sought and was granted additional facility of Ksh 1,699,450 which was secured by a further legal charge over the same property. The respondent aver that it was an express term of the charged documents that all monies, obligations and liabilities secured by the charge shall immediately become due and payable on demand if the chargor fails to pay when demanded or fails to comply with the terms of the loan facility. That on 19th July 2021, the plaintiff/applicant house and personal secured loans were amalgamated at her request.
The applicant loan account fell into arrears and as at 26th November 2024 the outstanding amount due and owing stood at ksh.6,616,894.15 which amount continue to accrue interest. The respondent avers that as a result of non-payment of the loan amount, the respondent served the applicant with the rectification notice under section 90 of the Land Act 2012, the notice of intention to sell under section 96 of the Land Act and redemption notice under Rule 15 (d) of the auctioneers Rule 1997. After the rectification notice was issued, the respondent served upon the applicant a notice of intention to sale as provided for under section 96 (2) and (3) of the land Act.
The respondent stated that a valuation of the property was done and a copy of the valuation report dated 29th august 2024 attached and that after all the statutory notices were issued and served upon the applicant, the property was advertised for sale vide daily Nation Newspaper of 5th November 2024.
It is argued that the applicant has not placed before the court any material evidence of infringement of her right by the respondent in exercise of the statutory power of sale neither is there any cause of action against the respondent. That the loan contract confers upon the party’s rights and obligations which includes the obligation by the applicant to repay the loan facility according to the terms of the contract.
Upon service of the replying affidavit dated 12th march 2025, the applicant counsel sought for time to file submissions thereto. As at the time of writing this ruling the applicant has neither filed any further response to the respondent aforementioned replying affidavit nor its submissions as had undertaken.
Respondent Submissions
I have considered the respondent submissions filed on 12th March 2026 together with the authorities supplied.
The principles for granting a temporary injunction were well settled in the case Giella vs. Cassman Brown & Co. Ltd [1973] EA 358 and expounded in the case of Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR where the Court stated the law as follows:
“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.
“…these are the three pillars on which rest 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… 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 are 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.”
In Mrao vs First American Bank Of Kenya Limited & 2 others (2003) eklr, the court defined prima facie as;
“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…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 than arguable case”
Court of Appeal in Nguruman Limited vs Jan Bonde Nielsen & 2 0thers (2014) eklr (supra) had this to say:
“we adopt the definition save to add the following conditions by way of explanting it. 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 there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. we reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial 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 threatened with violation.”
In the instant matter, there is no dispute that the applicant a former employee of the defendant had applied for and was granted loan amount initially of Ksh 4,100, 550 with an additional facility of 1,699,450 extended all secured by a legal charge over her property LR.NO NGONG/NGONG/47561. It is also not in dispute that the applicant who resigned from the defendant employment defaulted in repayment of the loan advanced and sought to engage the defendant on review of the interest rate and the monthly repayment based on her current income. The respondent also contend that she was not served with the three months statutory notice and that the property was undervalued.
I have looked at the defendants list of documents dated 16th January 2026 which clearly shows that the three Months statutory notice and all the other notices were sent to the applicant via her two known addresses, i.e. P.O BOX 928-00206 Kiserian and P.O BOX 30081-00100 Nairobi. This is the same address in the applicant supporting affidavit dated 7th November 2024. The applicant contention in paragraph 6 of her supporting affidavit that she has been paying for the loan facility is not supported by evidence. There are no annexures of the status of her loan account with the respondent and a mere statement that the amount owing is disputed is not a basis for the court to intervene. Disputes regarding interest rates, calculations or the exact amount due is not sufficient basis for halting a legal process properly commenced by a lender to realise the security. The applicant is bound by the terms and conditions of the contract and unless shown that her rights to property as a borrower have been or are likely to be infringed by a lender, an injunction to restrain a proper exercise of statutory power of sale should not be hindered. The applicant in not so serious a manner aver she did not understand how the bank arrived at the outstanding loan considering that the respondent has never responded to her request regarding negotiations of the mortgage terms without placing any material evidence of what she had paid and what in her view is due and owing.
If the loan is in dispute, and it is not in this case, the onus is on the applicant to show that it is disputed on substantial and bona fide ground and demonstrate a prima facie case so as to deserve an order of injunction. To merely state that her current salary is inadequate to meet the monthly instalment without offering a concrete proposal on how to settle the loan amount cannot be a reason to injunct the defendant.
In John Nduati Kariuki T/A Johester Merchants vs National Bank of Kenya (2006) eklr the court stated;
“The legal issue however is whether the dispute on the outstanding loan can scuttle the exercise by a chargee of its power of sale. On that legal proposition this court has expressed itself before and we need only refer to J.L.Luvuna & others vs Civil Servants Housing Co. Ltd & Another CA NAI 14/95 where it was stated per Kwach J.A “ I have always understood the law to be that a court should not grant an injunction restaring a morgagee from execising its statutory power of sale solely on the grounds there is a dispute as to amount under the mortgage”
In the circumstances therefore, I find that the plaintiff/applicant has not established a prima facies case with any probability of success. As I am persuaded that the first hurdle has not be surmounted, then invitation to consider the other two pillars on the adequacy of damages and the balance of convenience is declined.
Consequently, the application dated 7th November 2024 is Dismissed with the Cost and the interim Order issued by this court on 21st November 2024 is hereby discharged.