1. The plaintiff filed a notice of motion dated 24th June 2025, seeking an order to restrain the 1st and 2nd defendants from effecting a transfer by chargee and/or dealing in any way with Title Number Nairobi Block 47/1704 Miotoni Area, along Nandi Road, Karen Estate, Nairobi City County, pending the hearing and determination of the application.
2. The plaintiff also sought an order directing the 1st defendant to refer the dispute to the Islamic Sharia Board and/or restraining the 2nd defendant from conducting a sale by public auction on 26th June 2025.
3. On 26th June 2025, the court issued the following orders:-
(1) The auction scheduled for today is rescheduled to 3.7.2025 at noon.
(2) The appellant to pay a sum of Kshs. 10,000,000/- to the Bank together with auctioneer’s charges before 3.7.2025.
(3) The respondents to file and serve replies within 3 days of today. The application be heard on 3.7.2025 at 9.00 am.
4. The plaintiff filed an application dated 1st July 2025, seeking a variation of the court order dated 26th June 2025 to the effect that the plaintiff pays security of Kshs. 2,000,000/- or such other reasonable amount pending inter partes hearing of the application.
5. In opposition to the application, the 1st defendant filed grounds of opposition dated 2nd July 2025. It contended that the proceedings are res judicata, that on 30th January 2025, Mulwa J. delivered a ruling in HCCC E016 of 2025- Magnoy Communications Limited v Absa Bank PLC dismissing the plaintiff’s notice of motion dated 6th January 2025 stating that the plaintiff was indebted to the 1st defendant and is entitled to exercise its statutory power of sale.
Second application
6. The plaintiff filed an application dated 1st July 2025 seeking variation of the court order issued on 26th June 2025, to reduce the amount it is required to pay to Kshs. 2,000,000/- or such other reasonable sum pending the inter partes hearing of the application.
7. The plaintiff also sought a stay of the public auction rescheduled for 3rd July 2025 and clarification of the effect and scope of order 1 and 2 issued on 26th June 2025, in particular, whether the public auction remains suspended and whether the defendants can proceed with a fresh advertisement and auction or require further leave of court.
8. The other orders sought were similar to the ones sought in the first application.
Hearing
9. On 3.7.2025, Mr. Abdirizak indicated that the plaintiff filed a certificate seeking a review of the foregoing orders, because the plaintiff offered to pay Kshs. 2,000,000/-. He also argued that there is no urgency to dispose the property as the Bank still has security. He further contended that the Bank should refer to the Islamic Sharia Board based on Islamic Sharia as the dispute is based on a debt from a Musharaka loan. He urged the court to preserve the property, highlighting that the Bank had first obtained a valuation indicating a value of Kshs. 117,000,000/-, and later commissioned another valuation placing reflecting a value of Kshs. 92,000,000/-.
10. Ms. Wameyo for the Bank opposed the review application. She pointed out that the plaintiff had applied for an injunction and that the issues raised in this suit were considered and determined by Justice Mulwa in HCCC E016 of 2025. She faulted the plaintiff for failing to pay the Bank Kshs. 10,000,000/- as per the order and the Kshs. 2,000,000/- that it offered.
11. Mr. Abdirazak countered that HCCC E016 of 2025 is different. He argued that the rates were revised and that the plaintiff stopped paying following the change in the rates.
Analysis and Determination
Interpretation
12. On 3.7.25, the court reviewed its orders issued on 26th June 2025. And required the applicant to pay a sum of KES. 4000,000/- to the Bank and KES. 1,000,000 to the auctioneers within 14 days. The auction was rescheduled to 24.7.25.
13. On the day of this ruling, the applicant had not complied with the said orders. He sought for more time to comply.
14. The Bank through their legal counsel Ms. Wameyo opposed any extension.
15. The court, however, noted that the applicant may comply with those orders by 24.7.25. Good faith is everything and acts as a compelling impetus for the exercise of discretion in favour of a party.
16. The latter is lacking. The above reprieve is magnanimous.
17. Orders accordingly.
Dated, signed and delivered at Nairobi through Microsoft online application this 21st day of July, 2025
------------------
F. Gikonto M
Judge
In the presence of: -
1. Abdurazak for plaintiff
2. Ms. Wameyo for the defendant
3. Kinyua C/A
2. The plaintiff also sought an order directing the 1st defendant to refer the dispute to the Islamic Sharia Board and/or restraining the 2nd defendant from conducting a sale by public auction on 26th June 2025.
3. On 26th June 2025, the court issued the following orders:-
(1) The auction scheduled for today is rescheduled to 3.7.2025 at noon.
(2) The appellant to pay a sum of Kshs. 10,000,000/- to the Bank together with auctioneer’s charges before 3.7.2025.
(3) The respondents to file and serve replies within 3 days of today. The application be heard on 3.7.2025 at 9.00 am.
4. The plaintiff filed an application dated 1st July 2025, seeking a variation of the court order dated 26th June 2025 to the effect that the plaintiff pays security of Kshs. 2,000,000/- or such other reasonable amount pending inter partes hearing of the application.
5. In opposition to the application, the 1st defendant filed grounds of opposition dated 2nd July 2025. It contended that the proceedings are res judicata, that on 30th January 2025, Mulwa J. delivered a ruling in HCCC E016 of 2025- Magnoy Communications Limited v Absa Bank PLC dismissing the plaintiff’s notice of motion dated 6th January 2025 stating that the plaintiff was indebted to the 1st defendant and is entitled to exercise its statutory power of sale.
Second application
6. The plaintiff filed an application dated 1st July 2025 seeking variation of the court order issued on 26th June 2025, to reduce the amount it is required to pay to Kshs. 2,000,000/- or such other reasonable sum pending the inter partes hearing of the application.
7. The plaintiff also sought a stay of the public auction rescheduled for 3rd July 2025 and clarification of the effect and scope of order 1 and 2 issued on 26th June 2025, in particular, whether the public auction remains suspended and whether the defendants can proceed with a fresh advertisement and auction or require further leave of court.
8. The other orders sought were similar to the ones sought in the first application.
Hearing
9. On 3.7.2025, Mr. Abdirizak indicated that the plaintiff filed a certificate seeking a review of the foregoing orders, because the plaintiff offered to pay Kshs. 2,000,000/-. He also argued that there is no urgency to dispose the property as the Bank still has security. He further contended that the Bank should refer to the Islamic Sharia Board based on Islamic Sharia as the dispute is based on a debt from a Musharaka loan. He urged the court to preserve the property, highlighting that the Bank had first obtained a valuation indicating a value of Kshs. 117,000,000/-, and later commissioned another valuation placing reflecting a value of Kshs. 92,000,000/-.
10. Ms. Wameyo for the Bank opposed the review application. She pointed out that the plaintiff had applied for an injunction and that the issues raised in this suit were considered and determined by Justice Mulwa in HCCC E016 of 2025. She faulted the plaintiff for failing to pay the Bank Kshs. 10,000,000/- as per the order and the Kshs. 2,000,000/- that it offered.
11. Mr. Abdirazak countered that HCCC E016 of 2025 is different. He argued that the rates were revised and that the plaintiff stopped paying following the change in the rates.
Analysis and Determination
Interpretation
12. On 3.7.25, the court reviewed its orders issued on 26th June 2025. And required the applicant to pay a sum of KES. 4000,000/- to the Bank and KES. 1,000,000 to the auctioneers within 14 days. The auction was rescheduled to 24.7.25.
13. On the day of this ruling, the applicant had not complied with the said orders. He sought for more time to comply.
14. The Bank through their legal counsel Ms. Wameyo opposed any extension.
15. The court, however, noted that the applicant may comply with those orders by 24.7.25. Good faith is everything and acts as a compelling impetus for the exercise of discretion in favour of a party.
16. The latter is lacking. The above reprieve is magnanimous.
17. Orders accordingly.
Dated, signed and delivered at Nairobi through Microsoft online application this 21st day of July, 2025
------------------
F. Gikonto M
Judge
In the presence of: -
1. Abdurazak for plaintiff
2. Ms. Wameyo for the defendant
3. Kinyua C/A