Introduction and Background
1. Before the Court is the plaintiff’s Notice of Motion dated 4th April 2025. The application is brought under certificate of urgency and seeks, among others, orders restraining the respondents from evicting the applicant from the suit property known as LR No. 12146/29 (Original No. 12146/23/2), Nairobi Block 149/1841, and from completing or transferring the property pursuant to a public auction conducted on 2nd April 2025. The applicant also seeks an order reversing the said public auction and any other orders the Court may deem fit.
2. The applicant avers that the suit property is his matrimonial home where he resides with his seven children. He contends that the respondents, particularly the Bank in collusion with the auctioneer (2nd respondent), unlawfully and maliciously sold the property by public auction despite ongoing negotiations with him aimed at settling the loan arrears. He claims to have entered into a parallel sale agreement for an alternative property, LR No. Nachuu/Ndacha/269, to raise funds to clear the outstanding loan.
3. The said sale agreement was executed on 26th March 2025 and shared with the Bank, with Kshs. 1 million being remitted to the loan account. According to him, the Bank had agreed to this arrangement, including the payment of auctioneer’s fees by 4th April 2025.
4. However, to his surprise, the applicant was informed on 2nd April 2025 that his property was being auctioned that very day. He states that upon inquiry at the auctioneer’s office, he was told that the sale had already taken place, a deposit paid, and a memorandum of sale signed. The applicant alleges that the respondents have refused to provide any documentation relating to the sale and are now taking steps to finalize the transaction and evict him from the property.
5. He maintains that he is willing to regularize the loan account and settle the auctioneer’s charges and argues that unless restrained, the respondents’ actions will cause him irreparable harm.
6. The application is opposed by the Bank, which argues that the present proceedings are an abuse of the court process and amount to re-litigation of issues previously determined. The Bank points out that the applicant had earlier filed two applications dated 5th December 2023 and 1st March 2024, seeking similar injunctive reliefs. On 14th December 2023, the Court had granted interim protection on condition that he deposits Kshs. 2,000,000/= in a joint interest-earning account. He failed to comply, prompting him to file a second application seeking an extension of time.
7. Both applications were dismissed by this Court in a ruling delivered on 4th October 2024, where the Court found that the applicant was duly notified of his indebtedness and that the Bank’s recovery process was lawful and regular. The Bank submits that the current application raises the same grievances as the earlier ones: alleged lack of notice, sentimental value of the property, willingness to pay, and absence of prejudice to the Bank. As such, the Bank contends that the application is res judicata.
8. Further, the Bank asserts that all requisite notices under the Land Act were duly served, the property was properly valued, and the public auction was lawfully conducted on 2nd April 2025. The property has since been sold to a third party, extinguishing the applicant’s equity of redemption. In the alternative, the Bank proposes that should the Court entertain the application, the applicant should be directed to deposit Kshs. 57,000,000/= in a joint account as security.
Analysis and Determination
9. The main issue for determination is whether the Court should grant the temporary injunctive relief sought, including reversal of the sale conducted on 2nd April 2025.
10. It is not in dispute that the applicant previously approached the Court seeking injunctive relief over the same property and against the same respondents. The reliefs sought in the present application are materially identical to those sought in the applications dated 5th December 2023 and 1st March 2024. In both prior instances, this Court considered the applicant’s claims, including his plea that the property was a matrimonial home, that he was willing to pay, and that the Bank’s actions were irregular.
11. The Court rendered itself in a detailed ruling on 4th October 2024, finding that the applicant was in default, had been issued with proper notices, and that the Bank’s exercise of statutory power of sale was lawful. The Court also found that the applicant had failed to meet conditions imposed for the grant of interim relief.
12. The doctrine of res judicata, as codified under Section 7 of the Civil Procedure Act, bars a party from re-litigating matters that were directly and substantially in issue in a former suit between the same parties, and which have been heard and finally determined by a court of competent jurisdiction.
13. I am satisfied that the present application offends this doctrine. The applicant’s attempt to repackage the same issues in a fresh application does not cure this fundamental bar. This Court cannot be invited to sit on appeal over its own ruling rendered on 4th October 2024.
14. Moreover, it is evident that the sale took place on 2nd April 2025 and the property was sold to a third party. I do agree with the Bank that as it stands, the chargor’s equity of redemption is extinguished. There is no evidence before Court to suggest that the sale was conducted in breach of the mandatory provisions of the Land Act or in a manner that would warrant its nullification.
15. The applicant admits knowledge of the loan default and does not dispute that he offered the suit property as security. His claim of ongoing negotiations have not been substantiated by any evidence and while unfortunate if true, cannot override the Bank’s statutory rights once the default crystallized and the notices were properly issued. The applicant has not demonstrated a prima facie case with a probability of success, nor has he established that he stands to suffer irreparable harm that cannot be compensated by damages. On the other hand, the rights of a third-party purchaser who is not before this Court must also be considered.
Disposition
16. In light of the foregoing, the Notice of Motion dated 4th April 2025 is hereby dismissed with costs to the Defendants.
It is so ordered.
1. Before the Court is the plaintiff’s Notice of Motion dated 4th April 2025. The application is brought under certificate of urgency and seeks, among others, orders restraining the respondents from evicting the applicant from the suit property known as LR No. 12146/29 (Original No. 12146/23/2), Nairobi Block 149/1841, and from completing or transferring the property pursuant to a public auction conducted on 2nd April 2025. The applicant also seeks an order reversing the said public auction and any other orders the Court may deem fit.
2. The applicant avers that the suit property is his matrimonial home where he resides with his seven children. He contends that the respondents, particularly the Bank in collusion with the auctioneer (2nd respondent), unlawfully and maliciously sold the property by public auction despite ongoing negotiations with him aimed at settling the loan arrears. He claims to have entered into a parallel sale agreement for an alternative property, LR No. Nachuu/Ndacha/269, to raise funds to clear the outstanding loan.
3. The said sale agreement was executed on 26th March 2025 and shared with the Bank, with Kshs. 1 million being remitted to the loan account. According to him, the Bank had agreed to this arrangement, including the payment of auctioneer’s fees by 4th April 2025.
4. However, to his surprise, the applicant was informed on 2nd April 2025 that his property was being auctioned that very day. He states that upon inquiry at the auctioneer’s office, he was told that the sale had already taken place, a deposit paid, and a memorandum of sale signed. The applicant alleges that the respondents have refused to provide any documentation relating to the sale and are now taking steps to finalize the transaction and evict him from the property.
5. He maintains that he is willing to regularize the loan account and settle the auctioneer’s charges and argues that unless restrained, the respondents’ actions will cause him irreparable harm.
6. The application is opposed by the Bank, which argues that the present proceedings are an abuse of the court process and amount to re-litigation of issues previously determined. The Bank points out that the applicant had earlier filed two applications dated 5th December 2023 and 1st March 2024, seeking similar injunctive reliefs. On 14th December 2023, the Court had granted interim protection on condition that he deposits Kshs. 2,000,000/= in a joint interest-earning account. He failed to comply, prompting him to file a second application seeking an extension of time.
7. Both applications were dismissed by this Court in a ruling delivered on 4th October 2024, where the Court found that the applicant was duly notified of his indebtedness and that the Bank’s recovery process was lawful and regular. The Bank submits that the current application raises the same grievances as the earlier ones: alleged lack of notice, sentimental value of the property, willingness to pay, and absence of prejudice to the Bank. As such, the Bank contends that the application is res judicata.
8. Further, the Bank asserts that all requisite notices under the Land Act were duly served, the property was properly valued, and the public auction was lawfully conducted on 2nd April 2025. The property has since been sold to a third party, extinguishing the applicant’s equity of redemption. In the alternative, the Bank proposes that should the Court entertain the application, the applicant should be directed to deposit Kshs. 57,000,000/= in a joint account as security.
Analysis and Determination
9. The main issue for determination is whether the Court should grant the temporary injunctive relief sought, including reversal of the sale conducted on 2nd April 2025.
10. It is not in dispute that the applicant previously approached the Court seeking injunctive relief over the same property and against the same respondents. The reliefs sought in the present application are materially identical to those sought in the applications dated 5th December 2023 and 1st March 2024. In both prior instances, this Court considered the applicant’s claims, including his plea that the property was a matrimonial home, that he was willing to pay, and that the Bank’s actions were irregular.
11. The Court rendered itself in a detailed ruling on 4th October 2024, finding that the applicant was in default, had been issued with proper notices, and that the Bank’s exercise of statutory power of sale was lawful. The Court also found that the applicant had failed to meet conditions imposed for the grant of interim relief.
12. The doctrine of res judicata, as codified under Section 7 of the Civil Procedure Act, bars a party from re-litigating matters that were directly and substantially in issue in a former suit between the same parties, and which have been heard and finally determined by a court of competent jurisdiction.
13. I am satisfied that the present application offends this doctrine. The applicant’s attempt to repackage the same issues in a fresh application does not cure this fundamental bar. This Court cannot be invited to sit on appeal over its own ruling rendered on 4th October 2024.
14. Moreover, it is evident that the sale took place on 2nd April 2025 and the property was sold to a third party. I do agree with the Bank that as it stands, the chargor’s equity of redemption is extinguished. There is no evidence before Court to suggest that the sale was conducted in breach of the mandatory provisions of the Land Act or in a manner that would warrant its nullification.
15. The applicant admits knowledge of the loan default and does not dispute that he offered the suit property as security. His claim of ongoing negotiations have not been substantiated by any evidence and while unfortunate if true, cannot override the Bank’s statutory rights once the default crystallized and the notices were properly issued. The applicant has not demonstrated a prima facie case with a probability of success, nor has he established that he stands to suffer irreparable harm that cannot be compensated by damages. On the other hand, the rights of a third-party purchaser who is not before this Court must also be considered.
Disposition
16. In light of the foregoing, the Notice of Motion dated 4th April 2025 is hereby dismissed with costs to the Defendants.
It is so ordered.