1. Before this Court is the Plaintiffs' Notice of Motion dated 27 th September 2024, seeking:
i. A temporary injunction restraining the Defendant from advertising, selling, disposing of, alienating, or otherwise dealing with Apartment No. B11, 11th Floor, Block B, "The Residences at General Mathenge," LR No. 1870/II/472, Westlands, Nairobi ("the suit property"), pending the hearing and determination of the Application and the Suit; and
ii. An order permitting the Plaintiffs to settle the subject facility through monthly payments of Kshs. 500,000/=, pending determination of the suit.
2. The Application is supported by an Affidavit sworn by the 2 nd Plaintiff, Haroon Shahid Butt on 27 th September 2024 and further affidavits sworn by him on 31 st March 2025 and 17 th September 2025.
3. It is opposed by a Replying Affidavit sworn by Faith Ndonga, an officer in the Defendant’s debt recovery unit on 25 th November 2024 and a further replying affidavit dated 15 th January, 2026.
4. The background of the suit is that in 2022, the 1 st Plaintiff was contracted to transport coal from Songea, Tanzania to Kisumu, Kenya for Abyssinia Iron & Steel Limited. A precondition of the contract was that the 1 st Plaintiff was required to open an account with the Defendant for purposes of discounting cheques issued by the steel company which was banking with the Defendant.
5. To facilitate the business, the Defendant advanced the 1 st Plaintiff a Revolving Cheque Discounting/Bank Guarantee facility of Kshs. 80,000,000/=, secured inter alia by a First Legal Charge over the suit property registered in the names of the 2 nd and 3 rd Plaintiffs, together with their personal guarantees.
3 The underlying transport contract collapsed, leaving the 1 st Plaintiff financially exposed. By a Letter of Offer dated 18 th July 2023, the facility was restructured into a term loan of Kshs. 72,653,746/=, repayable over 36 months.
4 The 1 st Plaintiff fell into arrears. The Defendant issued a Demand Notice dated 6 th February 2024, a Statutory Notice under section 90(3) of the Land Act on 5 th March 2024, a Notification of Sale under section 96(2) of the Land Act dated 11 th June 2024, and a 45-day Redemption Notice, before instructing auctioneers to sell the suit property.
5 The Plaintiffs contend that these statutory notices were never validly served. The Plaintiffs further pointed out that the Defendant successfully served a 14-day auction notice physically at the 1 st Plaintiff's Nairobi office, yet they claimed that the statutory notices which were more consequential were sent by post/email to Mombasa, with no certificate of posting produced.
6 It is not in contention that the 1 st Plaintiff owes the Defendant money. The 2 nd Plaintiff's Supplementary Affidavit sworn on 31 st March 2025 admits the indebtedness, and the Plaintiffs made a lumpsum payment of Kshs. 3,000,000 in September 2024, followed by further payments. By the Plaintiffs' 2 nd Supplementary Affidavit sworn on 17th September 2025, the parties had reached an informal arrangement whereby the Plaintiffs would pay Kshs. 1,000,000/= per month for six months while attempting to sell the property by private treaty, an arrangement the Defendant's Relationship Manager acknowledged in writing on 14 th August 2025, noting that the Plaintiff’s account was in arrears of Kshs. 67,683,878.68 as at that date.
7 The Plaintiffs argue that they meet the Giella v. Cassman Brown test to be granted a temporary injunction. They contend that a prima facie case exists, the disruption of business forced the conversion of their facility into a term loan, and the Defendant failed to serve statutory notices under Sections 90 and 96 of the Land Act, 2012, by dispatching them to an incorrect address in Mombasa. Relying on Mrao Ltd v. First American Bank of Kenya Ltd, Albert Mario Cordeiro v. Vishram Shamji , and Co-operative Bank of Kenya Ltd v. Patrick Kangethe Njuguna , they submit that defective or absent statutory notice invalidates the exercise of a statutory power of sale.
8 Regarding irreparable injury, the Plaintiff’s submit that the property is the 2 nd and 3 rd Plaintiffs' matrimonial home; citing Joseph Siro Mosioma v. Housing Finance Co. of Kenya and Kanorero River Farm Ltd v. National Bank of Kenya. They assert that monetary damages cannot substitute a clear breach of law or compensate for the loss of a primary residence. They further cited Bevaj Furniture Ltd v. Gulf African Bank Ltd , and submitted that the balance of convenience favors halting the sale and allowing them to pay Kshs. 500,000/- monthly, as the Court has power under Sections 103, 104, and 105 of the Land Act to vary or postpone a sale.
9 The Defendant on the other hand submitted that the Plaintiffs should not be entitled to injunctive relief as its statutory power of sale has validly accrued following extensive default on arrears exceeding Kshs. 22 million on principal and Kshs. 15 million on interest. The Defendant contends that no prima facie case has been established, relying on National Bank of Kenya Ltd v. Pipe Plastic Samkolit (K) Ltd to argue that courts cannot rewrite contracts or relieve parties from a bad bargain, and Mrao Ltd v. First American Bank of Kenya Ltd to demonstrate that default cannot be restrained unless the debt is paid into court. Relying on Wilstone Mdindi Mwawugunga v. Kenya Women Microfinance Bank PLC , the Defendant submitted that proper spousal consent was obtained, meaning the property stands at risk of sale upon default regardless of its status as a matrimonial home.
10 Citing Andrew Muriuki Wanjohi v. Equity Building Society and Andrew Ouko v. Kenya Commercial Bank , the Defendant submits that damages are an adequate remedy under Section 99(4) of the Land Act because the property was pledged for a specific sum, and the balance of convenience favors the Bank to prevent the debt from outstripping the security's value. Lastly, citing King v. General Commissioners for Income Tax Acts (District of Kensington) , the Defendant submitted that the Plaintiffs approached the Court with unclean hands through material non-disclosure of default and receipt of notice therefore disentitling them from equitable remedies.
Determination
11 Having considered the pleadings, affidavits and submissions on record, I find that the following two issues arise for determination:
i. Whether the Plaintiffs have satisfied the three principles for the grant of a temporary injunction; and
ii. Whether, in the circumstances of this case, the Plaintiffs are entitled to the orders sought herein.
12 On whether the plaintiffs have satisfied the principles for the grant of a temporary injunction, the principles applicable were well settled in the classicus case of Giella v Cassman Brown & Co. Ltd (1973) EA 358 , where the Court held that: -
“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, 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.”
13 These principles were restated by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR , where the Court emphasized that the three conditions are separate, distinct and sequential hurdles which an applicant must surmount.
14 The first question, therefore, is whether the Plaintiffs have established a prima facie case. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 , the Court of Appeal described a prima facie case as: -
“A prima facie case in a civil application includes but is 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 that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal.”
15 The Defendant submits that the Plaintiffs cannot establish a prima facie case because the indebtedness is admitted and the Plaintiffs have defaulted in repayment. That submission is correct to the extent that an admitted debt, without more, does not ordinarily constitute a basis for restraining a chargee from exercising its statutory remedies.
16 The Plaintiffs' case, however, is not that the debt is nonexistent or that their obligations have been discharged. Their challenge is directed principally at the legality of the intended exercise of the Defendant's statutory power of sale, particularly the validity and service of the statutory notices.
17 The distinction is important in the determination of this case. The existence of an indebtedness does not dispense with the statutory requirements governing the exercise of a chargee's power of sale. A chargee is entitled to recover a debt and, where the statutory conditions are satisfied, to realize its security. Conversely, the statutory power of sale must be exercised in accordance with the parameters and guardrails of the law.
18 The Plaintiffs have consistently disputed service of the requisite statutory notices. Of particular significance is the discrepancy between the address allegedly used for service of the Redemption Notice and the address at which the Defendant subsequently effected physical service of the auction notice. The Defendant has not, on the material presently before the Court, satisfactorily resolved the Plaintiffs' contention regarding the mode and efficacy of service.
19 In Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others [2017] eKLR , the Court of Appeal recognized that where service of the requisite statutory notices is disputed and the evidence raises a genuine question as to service, the issue may require interrogation at trial.
20 At this interlocutory stage, the Court is not called upon to make definitive findings on the disputed evidence. The question is whether the Plaintiffs have demonstrated an arguable right requiring protection pending trial. I find that they have done so, but the prima facie case is confined to the procedural regularity of the intended sale, particularly the validity and service of the statutory notices. The indebtedness itself is not in dispute.
21 On whether the Plaintiffs have demonstrated that they are likely to suffer irreparable harm which cannot adequately be compensated by an award of damages, the general position is that a person who offers property as security for a loan does so with the knowledge that, upon default, the property may be realized in accordance with the law. Thus, the mere prospect of losing a charged property through a lawful exercise of the statutory power of sale will not ordinarily constitute irreparable harm. This principle is anchored in Andrew M. Wanjohi v Equity Building Society Ltd & Another [2006] eKLR wherein the court stated:-
“By offering the suit property as security, the chargor was equating it to a commodity which the chargee may dispose of, so as to recover his loan together with interest thereon.”
22 The Plaintiffs' contention that the suit property constitutes a matrimonial home does not, in itself, exempt the property from the consequences of a valid charge. Where the requisite consent has been obtained and the statutory requirements have been complied with, matrimonial status does not, in itself, immunize or shield the charged property from sale.
23 The position is, however, different where the legality of the intended sale remains in question. If the Defendant was to proceed with a sale without complying with mandatory statutory requirements, the resulting prejudice would arise from an allegedly unlawful exercise of the statutory power.
24 In Joseph Siro Mosioma v Housing Finance Company of Kenya & 3 Others [2008] eKLR , the Court recognized that damages cannot necessarily be regarded as an adequate substitute for loss occasioned by a clear breach of the law.
25 In the circumstances therefore, although the monetary nature of the Plaintiffs' interest in the property weighs against a finding of irreparable harm, the unresolved question concerning the validity and service of the statutory notices makes this limb less straightforward. I therefore find that the Plaintiffs have demonstrated a sufficient risk of prejudice.
26 Having found that the Plaintiffs have established a prima facie case and that the question of irreparable harm is finely balanced, the Court must determine where the balance of convenience lies.
27 The evidence demonstrates that the outstanding indebtedness has continued to accrue and that the arrears have increased over time. The Defendant is consequently exposed to prejudice if its statutory remedies are indefinitely restrained while the debt remains unpaid.
28 On the other hand, the Plaintiffs have made substantial payments towards the facility. More significantly, the evidence shows that in August 2025 the Defendant's Relationship Manager acknowledged a repayment arrangement under which the Plaintiffs would make monthly payments while seeking to dispose of the property through a private treaty. A further payment of Kshs. 1,000,000/= was subsequently made and acknowledged by the Defendant.
29 The parties' subsequent conduct is material. It demonstrates that, at least for a period, the parties were pursuing a consensual mechanism for addressing the indebtedness rather than proceeding immediately to a forced sale. This conduct must be considered alongside the unresolved question concerning compliance with the statutory notice requirements.
30 The Court is guided by the lower risk of injustice approach as articulated in Amir Suleiman v Amboseli Resort Limited [2004] KLR where the court stated as follows: -
“A fundamental principle is therefore that the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong'.”
31 In the circumstances of this case, I am persuaded that the greater risk of injustice lies in permitting the Defendant to proceed with an immediate sale while the validity and service of the statutory notices remain contested. I accordingly find that the balance of convenience favors the preservation of the suit property, subject to appropriate terms which protect both the Plaintiffs' interest in preserving the subject matter of the suit and the Defendant's interest in recovering the outstanding indebtedness.
32 The Defendant contends that the Plaintiffs are disentitled to equitable relief on account of material non-disclosure. While an applicant seeking an equitable remedy owes the Court a duty of full and frank disclosure of material facts, the Plaintiffs have consistently maintained that the statutory notices were not validly served upon them. The mere existence of documents purporting to be statutory notices does not, in itself, establish that they were duly served or that the Plaintiffs deliberately concealed a material fact. I am therefore not persuaded that the alleged non-disclosure was deliberate or material so as to disentitle the Plaintiffs to equitable relief, and the objection does not defeat the instant Application.
33 Having considered the three principles sequentially, I find that the Plaintiffs have established a prima facie case, that the question of irreparable harm is finely balanced, and that the balance of convenience tilts towards the preservation of the suit property pending determination of the substantive dispute.
34 Turning to the second issue and having found that the Plaintiffs have satisfied the threshold for interim protection, the Court must consider the nature and extent of the relief that it ought to properly issue for the balance of justice to both parties.
35 The Plaintiffs seek to restrain the Defendant from exercising its statutory power of sale and to liquidate the outstanding facility by monthly instalments. While the Court cannot rewrite the parties’ contractual obligations or indefinitely restrain the Defendant’s remedies, sections 103, 104 and 105 of the Land Act permit intervention in appropriate circumstances.
36 Given the unresolved question of compliance with the statutory notice requirements, the Plaintiffs’ substantial payments, and the parties’ repayment arrangements, I find it appropriate to preserve the status quo on terms that protect both parties. The Plaintiffs shall therefore continue paying Kshs. 500,000/= monthly towards the outstanding indebtedness, without varying the contractual obligations or waiving interest. In the event of default, the Defendant shall remain at liberty to pursue its statutory remedies of sale, subject to compliance with the law.
37 Consequently, the Plaintiffs’ Notice of Motion dated 27 th September 2024 partly succeeds and the following orders are hereby issued:
a) A temporary injunction is hereby issued restraining the Defendant, its agents, servants and/or auctioneers from advertising, selling, disposing of, alienating or otherwise dealing with Apartment No. B11, 11th Floor, Block B, “The Residences at General Mathenge,” LR No. 1870/II/472, Westlands, Nairobi, pending the hearing and determination of the suit, subject to compliance with the order herein.
b) The Plaintiffs shall continue to liquidate the outstanding indebtedness by making monthly payments of Kshs. 500,000/= to the Defendant pending the hearing and determination of the suit. In the event of default, the Defendant shall be at liberty to pursue its statutory remedies, subject to compliance with the law.
c) The costs of the Application shall be in the cause.
38 It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17 TH DAY OF SEPTEMBER, 2026
In the presence of:
Agwara for the Plaintiffs
Mrs. Umba for the Defendant
Susan Nzioka/ Court Assistant
2
i. A temporary injunction restraining the Defendant from advertising, selling, disposing of, alienating, or otherwise dealing with Apartment No. B11, 11th Floor, Block B, "The Residences at General Mathenge," LR No. 1870/II/472, Westlands, Nairobi ("the suit property"), pending the hearing and determination of the Application and the Suit; and
ii. An order permitting the Plaintiffs to settle the subject facility through monthly payments of Kshs. 500,000/=, pending determination of the suit.
2. The Application is supported by an Affidavit sworn by the 2 nd Plaintiff, Haroon Shahid Butt on 27 th September 2024 and further affidavits sworn by him on 31 st March 2025 and 17 th September 2025.
3. It is opposed by a Replying Affidavit sworn by Faith Ndonga, an officer in the Defendant’s debt recovery unit on 25 th November 2024 and a further replying affidavit dated 15 th January, 2026.
4. The background of the suit is that in 2022, the 1 st Plaintiff was contracted to transport coal from Songea, Tanzania to Kisumu, Kenya for Abyssinia Iron & Steel Limited. A precondition of the contract was that the 1 st Plaintiff was required to open an account with the Defendant for purposes of discounting cheques issued by the steel company which was banking with the Defendant.
5. To facilitate the business, the Defendant advanced the 1 st Plaintiff a Revolving Cheque Discounting/Bank Guarantee facility of Kshs. 80,000,000/=, secured inter alia by a First Legal Charge over the suit property registered in the names of the 2 nd and 3 rd Plaintiffs, together with their personal guarantees.
3 The underlying transport contract collapsed, leaving the 1 st Plaintiff financially exposed. By a Letter of Offer dated 18 th July 2023, the facility was restructured into a term loan of Kshs. 72,653,746/=, repayable over 36 months.
4 The 1 st Plaintiff fell into arrears. The Defendant issued a Demand Notice dated 6 th February 2024, a Statutory Notice under section 90(3) of the Land Act on 5 th March 2024, a Notification of Sale under section 96(2) of the Land Act dated 11 th June 2024, and a 45-day Redemption Notice, before instructing auctioneers to sell the suit property.
5 The Plaintiffs contend that these statutory notices were never validly served. The Plaintiffs further pointed out that the Defendant successfully served a 14-day auction notice physically at the 1 st Plaintiff's Nairobi office, yet they claimed that the statutory notices which were more consequential were sent by post/email to Mombasa, with no certificate of posting produced.
6 It is not in contention that the 1 st Plaintiff owes the Defendant money. The 2 nd Plaintiff's Supplementary Affidavit sworn on 31 st March 2025 admits the indebtedness, and the Plaintiffs made a lumpsum payment of Kshs. 3,000,000 in September 2024, followed by further payments. By the Plaintiffs' 2 nd Supplementary Affidavit sworn on 17th September 2025, the parties had reached an informal arrangement whereby the Plaintiffs would pay Kshs. 1,000,000/= per month for six months while attempting to sell the property by private treaty, an arrangement the Defendant's Relationship Manager acknowledged in writing on 14 th August 2025, noting that the Plaintiff’s account was in arrears of Kshs. 67,683,878.68 as at that date.
7 The Plaintiffs argue that they meet the Giella v. Cassman Brown test to be granted a temporary injunction. They contend that a prima facie case exists, the disruption of business forced the conversion of their facility into a term loan, and the Defendant failed to serve statutory notices under Sections 90 and 96 of the Land Act, 2012, by dispatching them to an incorrect address in Mombasa. Relying on Mrao Ltd v. First American Bank of Kenya Ltd, Albert Mario Cordeiro v. Vishram Shamji , and Co-operative Bank of Kenya Ltd v. Patrick Kangethe Njuguna , they submit that defective or absent statutory notice invalidates the exercise of a statutory power of sale.
8 Regarding irreparable injury, the Plaintiff’s submit that the property is the 2 nd and 3 rd Plaintiffs' matrimonial home; citing Joseph Siro Mosioma v. Housing Finance Co. of Kenya and Kanorero River Farm Ltd v. National Bank of Kenya. They assert that monetary damages cannot substitute a clear breach of law or compensate for the loss of a primary residence. They further cited Bevaj Furniture Ltd v. Gulf African Bank Ltd , and submitted that the balance of convenience favors halting the sale and allowing them to pay Kshs. 500,000/- monthly, as the Court has power under Sections 103, 104, and 105 of the Land Act to vary or postpone a sale.
9 The Defendant on the other hand submitted that the Plaintiffs should not be entitled to injunctive relief as its statutory power of sale has validly accrued following extensive default on arrears exceeding Kshs. 22 million on principal and Kshs. 15 million on interest. The Defendant contends that no prima facie case has been established, relying on National Bank of Kenya Ltd v. Pipe Plastic Samkolit (K) Ltd to argue that courts cannot rewrite contracts or relieve parties from a bad bargain, and Mrao Ltd v. First American Bank of Kenya Ltd to demonstrate that default cannot be restrained unless the debt is paid into court. Relying on Wilstone Mdindi Mwawugunga v. Kenya Women Microfinance Bank PLC , the Defendant submitted that proper spousal consent was obtained, meaning the property stands at risk of sale upon default regardless of its status as a matrimonial home.
10 Citing Andrew Muriuki Wanjohi v. Equity Building Society and Andrew Ouko v. Kenya Commercial Bank , the Defendant submits that damages are an adequate remedy under Section 99(4) of the Land Act because the property was pledged for a specific sum, and the balance of convenience favors the Bank to prevent the debt from outstripping the security's value. Lastly, citing King v. General Commissioners for Income Tax Acts (District of Kensington) , the Defendant submitted that the Plaintiffs approached the Court with unclean hands through material non-disclosure of default and receipt of notice therefore disentitling them from equitable remedies.
Determination
11 Having considered the pleadings, affidavits and submissions on record, I find that the following two issues arise for determination:
i. Whether the Plaintiffs have satisfied the three principles for the grant of a temporary injunction; and
ii. Whether, in the circumstances of this case, the Plaintiffs are entitled to the orders sought herein.
12 On whether the plaintiffs have satisfied the principles for the grant of a temporary injunction, the principles applicable were well settled in the classicus case of Giella v Cassman Brown & Co. Ltd (1973) EA 358 , where the Court held that: -
“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, 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.”
13 These principles were restated by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR , where the Court emphasized that the three conditions are separate, distinct and sequential hurdles which an applicant must surmount.
14 The first question, therefore, is whether the Plaintiffs have established a prima facie case. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 , the Court of Appeal described a prima facie case as: -
“A prima facie case in a civil application includes but is 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 that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal.”
15 The Defendant submits that the Plaintiffs cannot establish a prima facie case because the indebtedness is admitted and the Plaintiffs have defaulted in repayment. That submission is correct to the extent that an admitted debt, without more, does not ordinarily constitute a basis for restraining a chargee from exercising its statutory remedies.
16 The Plaintiffs' case, however, is not that the debt is nonexistent or that their obligations have been discharged. Their challenge is directed principally at the legality of the intended exercise of the Defendant's statutory power of sale, particularly the validity and service of the statutory notices.
17 The distinction is important in the determination of this case. The existence of an indebtedness does not dispense with the statutory requirements governing the exercise of a chargee's power of sale. A chargee is entitled to recover a debt and, where the statutory conditions are satisfied, to realize its security. Conversely, the statutory power of sale must be exercised in accordance with the parameters and guardrails of the law.
18 The Plaintiffs have consistently disputed service of the requisite statutory notices. Of particular significance is the discrepancy between the address allegedly used for service of the Redemption Notice and the address at which the Defendant subsequently effected physical service of the auction notice. The Defendant has not, on the material presently before the Court, satisfactorily resolved the Plaintiffs' contention regarding the mode and efficacy of service.
19 In Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others [2017] eKLR , the Court of Appeal recognized that where service of the requisite statutory notices is disputed and the evidence raises a genuine question as to service, the issue may require interrogation at trial.
20 At this interlocutory stage, the Court is not called upon to make definitive findings on the disputed evidence. The question is whether the Plaintiffs have demonstrated an arguable right requiring protection pending trial. I find that they have done so, but the prima facie case is confined to the procedural regularity of the intended sale, particularly the validity and service of the statutory notices. The indebtedness itself is not in dispute.
21 On whether the Plaintiffs have demonstrated that they are likely to suffer irreparable harm which cannot adequately be compensated by an award of damages, the general position is that a person who offers property as security for a loan does so with the knowledge that, upon default, the property may be realized in accordance with the law. Thus, the mere prospect of losing a charged property through a lawful exercise of the statutory power of sale will not ordinarily constitute irreparable harm. This principle is anchored in Andrew M. Wanjohi v Equity Building Society Ltd & Another [2006] eKLR wherein the court stated:-
“By offering the suit property as security, the chargor was equating it to a commodity which the chargee may dispose of, so as to recover his loan together with interest thereon.”
22 The Plaintiffs' contention that the suit property constitutes a matrimonial home does not, in itself, exempt the property from the consequences of a valid charge. Where the requisite consent has been obtained and the statutory requirements have been complied with, matrimonial status does not, in itself, immunize or shield the charged property from sale.
23 The position is, however, different where the legality of the intended sale remains in question. If the Defendant was to proceed with a sale without complying with mandatory statutory requirements, the resulting prejudice would arise from an allegedly unlawful exercise of the statutory power.
24 In Joseph Siro Mosioma v Housing Finance Company of Kenya & 3 Others [2008] eKLR , the Court recognized that damages cannot necessarily be regarded as an adequate substitute for loss occasioned by a clear breach of the law.
25 In the circumstances therefore, although the monetary nature of the Plaintiffs' interest in the property weighs against a finding of irreparable harm, the unresolved question concerning the validity and service of the statutory notices makes this limb less straightforward. I therefore find that the Plaintiffs have demonstrated a sufficient risk of prejudice.
26 Having found that the Plaintiffs have established a prima facie case and that the question of irreparable harm is finely balanced, the Court must determine where the balance of convenience lies.
27 The evidence demonstrates that the outstanding indebtedness has continued to accrue and that the arrears have increased over time. The Defendant is consequently exposed to prejudice if its statutory remedies are indefinitely restrained while the debt remains unpaid.
28 On the other hand, the Plaintiffs have made substantial payments towards the facility. More significantly, the evidence shows that in August 2025 the Defendant's Relationship Manager acknowledged a repayment arrangement under which the Plaintiffs would make monthly payments while seeking to dispose of the property through a private treaty. A further payment of Kshs. 1,000,000/= was subsequently made and acknowledged by the Defendant.
29 The parties' subsequent conduct is material. It demonstrates that, at least for a period, the parties were pursuing a consensual mechanism for addressing the indebtedness rather than proceeding immediately to a forced sale. This conduct must be considered alongside the unresolved question concerning compliance with the statutory notice requirements.
30 The Court is guided by the lower risk of injustice approach as articulated in Amir Suleiman v Amboseli Resort Limited [2004] KLR where the court stated as follows: -
“A fundamental principle is therefore that the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong'.”
31 In the circumstances of this case, I am persuaded that the greater risk of injustice lies in permitting the Defendant to proceed with an immediate sale while the validity and service of the statutory notices remain contested. I accordingly find that the balance of convenience favors the preservation of the suit property, subject to appropriate terms which protect both the Plaintiffs' interest in preserving the subject matter of the suit and the Defendant's interest in recovering the outstanding indebtedness.
32 The Defendant contends that the Plaintiffs are disentitled to equitable relief on account of material non-disclosure. While an applicant seeking an equitable remedy owes the Court a duty of full and frank disclosure of material facts, the Plaintiffs have consistently maintained that the statutory notices were not validly served upon them. The mere existence of documents purporting to be statutory notices does not, in itself, establish that they were duly served or that the Plaintiffs deliberately concealed a material fact. I am therefore not persuaded that the alleged non-disclosure was deliberate or material so as to disentitle the Plaintiffs to equitable relief, and the objection does not defeat the instant Application.
33 Having considered the three principles sequentially, I find that the Plaintiffs have established a prima facie case, that the question of irreparable harm is finely balanced, and that the balance of convenience tilts towards the preservation of the suit property pending determination of the substantive dispute.
34 Turning to the second issue and having found that the Plaintiffs have satisfied the threshold for interim protection, the Court must consider the nature and extent of the relief that it ought to properly issue for the balance of justice to both parties.
35 The Plaintiffs seek to restrain the Defendant from exercising its statutory power of sale and to liquidate the outstanding facility by monthly instalments. While the Court cannot rewrite the parties’ contractual obligations or indefinitely restrain the Defendant’s remedies, sections 103, 104 and 105 of the Land Act permit intervention in appropriate circumstances.
36 Given the unresolved question of compliance with the statutory notice requirements, the Plaintiffs’ substantial payments, and the parties’ repayment arrangements, I find it appropriate to preserve the status quo on terms that protect both parties. The Plaintiffs shall therefore continue paying Kshs. 500,000/= monthly towards the outstanding indebtedness, without varying the contractual obligations or waiving interest. In the event of default, the Defendant shall remain at liberty to pursue its statutory remedies of sale, subject to compliance with the law.
37 Consequently, the Plaintiffs’ Notice of Motion dated 27 th September 2024 partly succeeds and the following orders are hereby issued:
a) A temporary injunction is hereby issued restraining the Defendant, its agents, servants and/or auctioneers from advertising, selling, disposing of, alienating or otherwise dealing with Apartment No. B11, 11th Floor, Block B, “The Residences at General Mathenge,” LR No. 1870/II/472, Westlands, Nairobi, pending the hearing and determination of the suit, subject to compliance with the order herein.
b) The Plaintiffs shall continue to liquidate the outstanding indebtedness by making monthly payments of Kshs. 500,000/= to the Defendant pending the hearing and determination of the suit. In the event of default, the Defendant shall be at liberty to pursue its statutory remedies, subject to compliance with the law.
c) The costs of the Application shall be in the cause.
38 It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17 TH DAY OF SEPTEMBER, 2026
In the presence of:
Agwara for the Plaintiffs
Mrs. Umba for the Defendant
Susan Nzioka/ Court Assistant
2