INTRODUCTION AND BACKGROUND
1. The Applicant has moved this Court by way of a Notice of Motion dated 24 th October 2024 brought pursuant to Sections 1A, 1B, 3A and 63(c) & (e) of the Civil Procedure Act, Orders 40 Rules 1 and 4 and Order 51 Rule 3 of the Civil Procedure Rules, Sections 90 and 96 of the Land Act and all other enabling provisions of the law.
2. The Application seeks the following orders:-
I. Spent.
II. Spent
III. Pending the hearing and determination of this Application, this Honourable Court be pleased to issue an injunction restraining the 1 st and 2 nd Respondents whether by themselves, agents or their employees from selling or offering for sale, transferring, charging, leasing, pledging or in any other way alienating or disposing off the property known as L.R. No. 330/766 (ORIGINAL NO. 330/3/30) HOUSE NO. 7 MAASAI COURT OFF RIARA ROAD KILIIMANI, NAIROBI CITY;
IV. Pending the hearing and determination of the main suit, this Honourable court be pleased to issue an injunction restraining the 1 st and 2 nd Respondents whether by themselves, agents or their employees from selling or offering for sale, transferring, charging, leasing, pledging or in any other way alienating or disposing off the property known as L.R. No. 330/766 (ORIGINAL NO. 330/3/30) HOUSE NO. 7 MAASAI COURT OFF RIARA ROAD KILIMANI, NAIROBI CITY; and
V. In the alternative to prayers (2)(3)&(4) above and pending the hearing of the instant Application and main suit, this Honourable Court be pleased to issue an order restraining the 1 st Respondent from exercising its statutory power of sale.
3. The application is supported by the Affidavit of Mohamed Hussein Ahmed sworn on 30 th October 2024. The Applicant has deponed in this Affidavit that the suit property constitutes his matrimonial home where he resides with his wife, Nimo Alio Bukura, and their child.
4. He avers that his wife obtained a loan facility from the 1 st Respondent secured by a Further Charge over the suit property without his knowledge or the mandatory spousal consent required under Section 79(3) of the Land Act.
5. The Applicant further contends that he was never served with the statutory notices required under Sections 90 and 96 of the Land Act before the Respondents commenced the process of realizing the security.
6. He therefore maintains that the intended auction is unlawful and, unless restrained, he and his family stand to lose their matrimonial home and suffer irreparable loss that cannot adequately be compensated by an award of damages.
7. The application is opposed through the Replying Affidavit of Samuel Njuguna, a Legal Officer of the 1 st Respondent, sworn on 24 th January 2025. The Respondent raises a preliminary objection that the Applicant lacks locus standi, contending that he is neither the borrower nor the chargor and was not the spouse of the chargor at the time the Further Charge was negotiated and executed.
8. The Respondent avers that the Further Charge dated 14 th June 2021 was validly executed by Nimo Alio Bukura, who at the time swore an affidavit confirming that she was unmarried. It is further deposed that the Applicant only married the Chargor on 13 th January 2022, several months after the creation of the Further Charge, and therefore cannot challenge its validity on the basis of lack of spousal consent.
9. The Respondent further states that upon default in repayment, the requisite statutory notices under the Land Act, together with the redemption notice and notification of sale, were duly issued before the 2 nd Respondent was instructed to realize the security.
10. Accordingly, the Respondent maintains that it lawfully exercised its statutory power of sale and urges the Court to dismiss the application with costs.
APPLICANT'S SUBMISSIONS
11. The Applicant submits that he has satisfied the principles governing the grant of an interlocutory injunction as set out in Giella v Cassman Brown & Co. Ltd [1973] EA 358 and reaffirmed in East African Development Bank v Hyundai Motors Kenya Ltd [2006] eKLR .
12. It is argued that he has established a prima facie case within the meaning of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR because the suit property is matrimonial property within the meaning of the Matrimonial Property Act and the Further Charge was created without his spousal consent contrary to Section 79(3) of the Land Act.
13. The Applicant further contends that the 1 st Respondent failed to undertake proper due diligence to ascertain the Chargor's marital status before accepting the suit property as security, thereby rendering the exercise of its statutory power of sale unlawful.
14. The Applicant further submits that he stands to suffer irreparable harm if the injunction is declined because the suit property is his family's matrimonial home and its loss cannot adequately be compensated by damages.
15. Reliance is placed on American Cyanamid Co. v Ethicon Ltd , Pine Court Malindi Ltd & Another v Imperial Bank (Under Receivership) & 2 Others [2019] eKLR , Marple Brooks Project Company Ltd & Another v I&M Bank Ltd [2019] eKLR , and Vivo Energy Kenya Ltd v Maloba Petrol Station Ltd & 3 Others [2015] eKLR .
16. It is also submitted that the balance of convenience favours preservation of the suit property pending the hearing and determination of the suit, as the Applicant and his family would suffer greater prejudice if the property is sold than the Respondents would suffer by awaiting the determination of the dispute. The Court is therefore urged to allow the application with costs.
RESPONDENTS' SUBMISSIONS
17. The Respondents submit that the Applicant has failed to satisfy the principles governing the grant of an interlocutory injunction as enunciated in Giella v Cassman Brown & Co. Ltd [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR .
18. They contend that the Applicant has not established a prima facie case within the meaning of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR , as the Further Charge was lawfully executed by the registered proprietor after the Bank exercised due diligence and relied on her sworn declaration that she was unmarried.
19. It is further submitted that the Applicant has failed to prove that the suit property constitutes matrimonial property or that he was entitled to spousal consent at the time the Further Charge was created.
20. In support of this position, the Respondents rely on Raiab Kipkoskei Magut v Sidian Bank Ltd & Another [2019] eKLR , Agricultural Finance Corporation v Lengetia Ltd [1985] eKLR , and National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR , arguing that the Applicant cannot avoid the legal consequences of a valid contract to which he was not a party.
21. The Respondents further submit that the Applicant has failed to demonstrate that he will suffer irreparable harm incapable of compensation by damages, relying on Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR and Hadija Shee Abu v John Lopez Lutuka Kibwenge & 4 Others [2020] eKLR .
22. They contend that the Applicant has not proved that the suit property is his matrimonial home or that its realization would occasion irreparable injury.
23. It is further submitted that the balance of convenience favours the Respondents since the outstanding debt continues to accrue interest while the Applicant has failed to establish any legal basis for restraining the Bank from exercising its statutory power of sale. Accordingly, the Respondents urge the Court to dismiss the application with costs.
ISSUE FOR DETERMINATION
24. Having perused the Notice of Motion dated 24 th October 2024, the supporting and replying affidavits, and the parties' respective submissions, I find that the main issue for determination is:
Whether the Applicant has met the legal threshold for the grant of an interlocutory injunction restraining the 1st Respondent from exercising its statutory power of sale over the suit property, pending the hearing and determination of the suit.
ANALYSIS AND DETERMINATION
25. The instant application relates to the grant of temporary injunctive relief pending the hearing and determination of this suit.
26. The substantive law on this matter is Order 40 Rule 1(a) of the Civil Procedure Rules 2010 which provides:
"Where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongly sold in execution of a decree ... 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 orders."
27. The principles governing the grant of interlocutory injunctions are now well settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358 , the Court held that an applicant must establish a prima facie case with a probability of success, demonstrate that he stands to suffer irreparable injury which cannot adequately be compensated by an award of damages, and, where the Court is in doubt, show that the balance of convenience tilts in his favour.
28. These principles were further clarified by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR , where the court emphasized thus:-
“...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...”
29. The Applicant's principal contention is that the suit property constitutes his matrimonial home and that the Further Charge dated 14 th June 2021 was created without his spousal consent contrary to Section 79(3) of the Land Act. The Applicant further challenges the Respondent's exercise of its statutory power of sale on the ground that the requisite statutory notices under Sections 90 and 96 of the Land Act were not served.
30. Conversely, the Respondent contends that the Applicant lacks locus standi because he was not married to the Chargor at the time the Further Charge was executed. It is the Respondent's case that the Chargor expressly declared herself to be unmarried when creating the security and that the parties only married on 13 th January 2022. The Respondent further maintains that all the statutory notices required under the Land Act were duly served before the statutory power of sale accrued.
31. The first issue for determination is therefore whether the Applicant has established a prima facie case with a probability of success.
32. A prima facie case was defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 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."
33. At this stage, the Court is not required to make definitive findings on disputed facts or determine the merits of the parties' respective cases. As was observed by the Court of Appeal in Nguruman Limited (supra) the Court should refrain from conducting a mini-trial at the interlocutory stage.
34. The Applicant has exhibited a Marriage Certificate issued under the Marriage Act indicating that he and the Chargor solemnized their marriage on 23 rd May 2019, although the certificate itself appears to have been issued at a later date. On the other hand, the Respondent has produced evidence that, at the time the Further Charge was executed on 14 th June 2021, the Chargor had sworn an affidavit declaring that she was unmarried and that the Bank acted upon that representation.
35. In the Court's view, the apparent inconsistency between the marriage certificate produced by the Applicant and the Chargor's declaration relied upon by the Respondent raises a bona fide dispute regarding the existence of the matrimonial relationship at the material time.
36. Equally contentious is whether the Respondent discharged its obligation of due diligence before accepting the suit property as security and whether, in the circumstances, the Applicant's spousal consent was required under Section 79(3) of the Land Act. These are not issues capable of being conclusively resolved on affidavit evidence and require full ventilation during the trial.
37. The Court of Appeal in Mugo Muiru Investments Ltd v EWB & 2 Others [2017] KECA 179 (KLR) while underscoring the duty imposed upon lenders dealing with matrimonial property, adopted with approval the decision in Williams & Glyn's Bank v Boland , wherein Lord Denning stated:
"Anyone who lends money on the security of a matrimonial home nowadays ought to realize that the wife may have a share in it. He ought to make sure that the wife agrees to it or to go to the house and make enquiries of her. It seems to me utterly wrong that a lender should turn a blind eye to the wife's interest or the possibility of it and afterwards seek to turn her and the family out on the pleas that he did not know she was in actual occupation."
38. Guided by the foregoing, I am persuaded that the apparent inconsistency between the Marriage Certificate relied upon by the Applicant and the declaration of marital status relied upon by the Respondent raises an arguable question requiring judicial interrogation.
39. Whether the Respondent undertook sufficient inquiries before accepting the suit property as security, whether the suit property constituted matrimonial property at the material time, and whether the Applicant's consent was required under Section 79(3) of the Land Act are issues that cannot be conclusively determined on affidavit evidence alone. They are matters that ought to await determination at the full hearing.
40. The court in AKK v JMK & 3 others [2019] KEELC 3713 (KLR) found that:-
“Having found that the Spousal Consent is doubtful, the Court finds that the Plaintiff/Applicant has established a prima-facie case with probability of success at the trial.”
41. Consequently, I am satisfied that the Applicant has established a prima facie case with a probability of success.
42. Turning to the second limb, the Applicant avers that the suit property constitutes his matrimonial home where he resides with his wife and child. If the Respondent proceeds with the intended sale before the dispute is heard and determined, the Applicant and his family stand to lose possession of what is alleged to be their matrimonial home. While addressing the issue of damages, the court in Joseph Siro Mosioma v Housing Finance Company of Kenya & 3 Others [2008] KEHC 3673 (KLR) stated:-
“On my part, let me restate that damages is not automatic remedy when deciding whether to grant an injunction or not. Damages is not and cannot be a substitute for the loss which is occasioned by a clear breach of the Law ….a party cannot be condemned to take damages in lieu of his crystallized right which can be protected by an order of injunction.’’
43. In the present case, should the suit property be sold before the substantive issues surrounding the Applicant's alleged spousal rights are determined, the Applicant's claim may be rendered nugatory. I am therefore persuaded that the Applicant has demonstrated the likelihood of suffering irreparable harm incapable of adequate compensation by damages.
44. Finally, on the balance of convenience, I am guided by the decision in Amir Suleiman v Amboseli Resort Limited [2004] KLR , where Ojwang J. (as he then was) acknowledged the continued evolution of the principles governing interlocutory injunctions and adopted with approval the reasoning of Hoffmann J. in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 , that:
"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'."
45. Applying the foregoing principle to the present case, I find that the lower risk of injustice lies in preserving the suit property pending the hearing and determination of the suit. Should the Applicant ultimately fail, the Respondent will still be at liberty to exercise its statutory power of sale in accordance with the law.
46. Conversely, if the property is sold before the substantive issues concerning the Applicant's alleged spousal rights and the validity of the charge are determined, and the Applicant ultimately succeeds, the prejudice occasioned may not be capable of effective redress.
47. Accordingly, the balance of convenience tilts in favour of maintaining the status quo pending the hearing and determination of the suit.
48. In the premises, I find that the Applicant has satisfied the principles governing the grant of an interlocutory injunction.
DISPOSITION AND ORDERS
49. Flowing from the foregoing, I find that the Notice of Motion dated 24 th October 2024 is meritorious and the same is hereby allowed.
50. Consequently, an injunction is hereby issued in terms of Prayer IV of the Notice of Motion restraining the 1 st and 2 nd Respondents from dealing in any manner whatsoever with the suit property pending the hearing and determination of the main suit. In view of the grant of Prayer IV, the alternative relief sought under Prayer V does not arise for consideration.
51. The costs of this application shall abide the outcome of the main suit.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17 th DAY OF SEPTEMBER 2026.
MURUNGA, J
Delivered on virtual platform in the presence of:
Mwasi for the Applicant
Kimiti for the Respondent
Kevin Babu - Court Assistant
1. The Applicant has moved this Court by way of a Notice of Motion dated 24 th October 2024 brought pursuant to Sections 1A, 1B, 3A and 63(c) & (e) of the Civil Procedure Act, Orders 40 Rules 1 and 4 and Order 51 Rule 3 of the Civil Procedure Rules, Sections 90 and 96 of the Land Act and all other enabling provisions of the law.
2. The Application seeks the following orders:-
I. Spent.
II. Spent
III. Pending the hearing and determination of this Application, this Honourable Court be pleased to issue an injunction restraining the 1 st and 2 nd Respondents whether by themselves, agents or their employees from selling or offering for sale, transferring, charging, leasing, pledging or in any other way alienating or disposing off the property known as L.R. No. 330/766 (ORIGINAL NO. 330/3/30) HOUSE NO. 7 MAASAI COURT OFF RIARA ROAD KILIIMANI, NAIROBI CITY;
IV. Pending the hearing and determination of the main suit, this Honourable court be pleased to issue an injunction restraining the 1 st and 2 nd Respondents whether by themselves, agents or their employees from selling or offering for sale, transferring, charging, leasing, pledging or in any other way alienating or disposing off the property known as L.R. No. 330/766 (ORIGINAL NO. 330/3/30) HOUSE NO. 7 MAASAI COURT OFF RIARA ROAD KILIMANI, NAIROBI CITY; and
V. In the alternative to prayers (2)(3)&(4) above and pending the hearing of the instant Application and main suit, this Honourable Court be pleased to issue an order restraining the 1 st Respondent from exercising its statutory power of sale.
3. The application is supported by the Affidavit of Mohamed Hussein Ahmed sworn on 30 th October 2024. The Applicant has deponed in this Affidavit that the suit property constitutes his matrimonial home where he resides with his wife, Nimo Alio Bukura, and their child.
4. He avers that his wife obtained a loan facility from the 1 st Respondent secured by a Further Charge over the suit property without his knowledge or the mandatory spousal consent required under Section 79(3) of the Land Act.
5. The Applicant further contends that he was never served with the statutory notices required under Sections 90 and 96 of the Land Act before the Respondents commenced the process of realizing the security.
6. He therefore maintains that the intended auction is unlawful and, unless restrained, he and his family stand to lose their matrimonial home and suffer irreparable loss that cannot adequately be compensated by an award of damages.
7. The application is opposed through the Replying Affidavit of Samuel Njuguna, a Legal Officer of the 1 st Respondent, sworn on 24 th January 2025. The Respondent raises a preliminary objection that the Applicant lacks locus standi, contending that he is neither the borrower nor the chargor and was not the spouse of the chargor at the time the Further Charge was negotiated and executed.
8. The Respondent avers that the Further Charge dated 14 th June 2021 was validly executed by Nimo Alio Bukura, who at the time swore an affidavit confirming that she was unmarried. It is further deposed that the Applicant only married the Chargor on 13 th January 2022, several months after the creation of the Further Charge, and therefore cannot challenge its validity on the basis of lack of spousal consent.
9. The Respondent further states that upon default in repayment, the requisite statutory notices under the Land Act, together with the redemption notice and notification of sale, were duly issued before the 2 nd Respondent was instructed to realize the security.
10. Accordingly, the Respondent maintains that it lawfully exercised its statutory power of sale and urges the Court to dismiss the application with costs.
APPLICANT'S SUBMISSIONS
11. The Applicant submits that he has satisfied the principles governing the grant of an interlocutory injunction as set out in Giella v Cassman Brown & Co. Ltd [1973] EA 358 and reaffirmed in East African Development Bank v Hyundai Motors Kenya Ltd [2006] eKLR .
12. It is argued that he has established a prima facie case within the meaning of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR because the suit property is matrimonial property within the meaning of the Matrimonial Property Act and the Further Charge was created without his spousal consent contrary to Section 79(3) of the Land Act.
13. The Applicant further contends that the 1 st Respondent failed to undertake proper due diligence to ascertain the Chargor's marital status before accepting the suit property as security, thereby rendering the exercise of its statutory power of sale unlawful.
14. The Applicant further submits that he stands to suffer irreparable harm if the injunction is declined because the suit property is his family's matrimonial home and its loss cannot adequately be compensated by damages.
15. Reliance is placed on American Cyanamid Co. v Ethicon Ltd , Pine Court Malindi Ltd & Another v Imperial Bank (Under Receivership) & 2 Others [2019] eKLR , Marple Brooks Project Company Ltd & Another v I&M Bank Ltd [2019] eKLR , and Vivo Energy Kenya Ltd v Maloba Petrol Station Ltd & 3 Others [2015] eKLR .
16. It is also submitted that the balance of convenience favours preservation of the suit property pending the hearing and determination of the suit, as the Applicant and his family would suffer greater prejudice if the property is sold than the Respondents would suffer by awaiting the determination of the dispute. The Court is therefore urged to allow the application with costs.
RESPONDENTS' SUBMISSIONS
17. The Respondents submit that the Applicant has failed to satisfy the principles governing the grant of an interlocutory injunction as enunciated in Giella v Cassman Brown & Co. Ltd [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR .
18. They contend that the Applicant has not established a prima facie case within the meaning of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR , as the Further Charge was lawfully executed by the registered proprietor after the Bank exercised due diligence and relied on her sworn declaration that she was unmarried.
19. It is further submitted that the Applicant has failed to prove that the suit property constitutes matrimonial property or that he was entitled to spousal consent at the time the Further Charge was created.
20. In support of this position, the Respondents rely on Raiab Kipkoskei Magut v Sidian Bank Ltd & Another [2019] eKLR , Agricultural Finance Corporation v Lengetia Ltd [1985] eKLR , and National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR , arguing that the Applicant cannot avoid the legal consequences of a valid contract to which he was not a party.
21. The Respondents further submit that the Applicant has failed to demonstrate that he will suffer irreparable harm incapable of compensation by damages, relying on Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR and Hadija Shee Abu v John Lopez Lutuka Kibwenge & 4 Others [2020] eKLR .
22. They contend that the Applicant has not proved that the suit property is his matrimonial home or that its realization would occasion irreparable injury.
23. It is further submitted that the balance of convenience favours the Respondents since the outstanding debt continues to accrue interest while the Applicant has failed to establish any legal basis for restraining the Bank from exercising its statutory power of sale. Accordingly, the Respondents urge the Court to dismiss the application with costs.
ISSUE FOR DETERMINATION
24. Having perused the Notice of Motion dated 24 th October 2024, the supporting and replying affidavits, and the parties' respective submissions, I find that the main issue for determination is:
Whether the Applicant has met the legal threshold for the grant of an interlocutory injunction restraining the 1st Respondent from exercising its statutory power of sale over the suit property, pending the hearing and determination of the suit.
ANALYSIS AND DETERMINATION
25. The instant application relates to the grant of temporary injunctive relief pending the hearing and determination of this suit.
26. The substantive law on this matter is Order 40 Rule 1(a) of the Civil Procedure Rules 2010 which provides:
"Where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongly sold in execution of a decree ... 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 orders."
27. The principles governing the grant of interlocutory injunctions are now well settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358 , the Court held that an applicant must establish a prima facie case with a probability of success, demonstrate that he stands to suffer irreparable injury which cannot adequately be compensated by an award of damages, and, where the Court is in doubt, show that the balance of convenience tilts in his favour.
28. These principles were further clarified by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR , where the court emphasized thus:-
“...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...”
29. The Applicant's principal contention is that the suit property constitutes his matrimonial home and that the Further Charge dated 14 th June 2021 was created without his spousal consent contrary to Section 79(3) of the Land Act. The Applicant further challenges the Respondent's exercise of its statutory power of sale on the ground that the requisite statutory notices under Sections 90 and 96 of the Land Act were not served.
30. Conversely, the Respondent contends that the Applicant lacks locus standi because he was not married to the Chargor at the time the Further Charge was executed. It is the Respondent's case that the Chargor expressly declared herself to be unmarried when creating the security and that the parties only married on 13 th January 2022. The Respondent further maintains that all the statutory notices required under the Land Act were duly served before the statutory power of sale accrued.
31. The first issue for determination is therefore whether the Applicant has established a prima facie case with a probability of success.
32. A prima facie case was defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 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."
33. At this stage, the Court is not required to make definitive findings on disputed facts or determine the merits of the parties' respective cases. As was observed by the Court of Appeal in Nguruman Limited (supra) the Court should refrain from conducting a mini-trial at the interlocutory stage.
34. The Applicant has exhibited a Marriage Certificate issued under the Marriage Act indicating that he and the Chargor solemnized their marriage on 23 rd May 2019, although the certificate itself appears to have been issued at a later date. On the other hand, the Respondent has produced evidence that, at the time the Further Charge was executed on 14 th June 2021, the Chargor had sworn an affidavit declaring that she was unmarried and that the Bank acted upon that representation.
35. In the Court's view, the apparent inconsistency between the marriage certificate produced by the Applicant and the Chargor's declaration relied upon by the Respondent raises a bona fide dispute regarding the existence of the matrimonial relationship at the material time.
36. Equally contentious is whether the Respondent discharged its obligation of due diligence before accepting the suit property as security and whether, in the circumstances, the Applicant's spousal consent was required under Section 79(3) of the Land Act. These are not issues capable of being conclusively resolved on affidavit evidence and require full ventilation during the trial.
37. The Court of Appeal in Mugo Muiru Investments Ltd v EWB & 2 Others [2017] KECA 179 (KLR) while underscoring the duty imposed upon lenders dealing with matrimonial property, adopted with approval the decision in Williams & Glyn's Bank v Boland , wherein Lord Denning stated:
"Anyone who lends money on the security of a matrimonial home nowadays ought to realize that the wife may have a share in it. He ought to make sure that the wife agrees to it or to go to the house and make enquiries of her. It seems to me utterly wrong that a lender should turn a blind eye to the wife's interest or the possibility of it and afterwards seek to turn her and the family out on the pleas that he did not know she was in actual occupation."
38. Guided by the foregoing, I am persuaded that the apparent inconsistency between the Marriage Certificate relied upon by the Applicant and the declaration of marital status relied upon by the Respondent raises an arguable question requiring judicial interrogation.
39. Whether the Respondent undertook sufficient inquiries before accepting the suit property as security, whether the suit property constituted matrimonial property at the material time, and whether the Applicant's consent was required under Section 79(3) of the Land Act are issues that cannot be conclusively determined on affidavit evidence alone. They are matters that ought to await determination at the full hearing.
40. The court in AKK v JMK & 3 others [2019] KEELC 3713 (KLR) found that:-
“Having found that the Spousal Consent is doubtful, the Court finds that the Plaintiff/Applicant has established a prima-facie case with probability of success at the trial.”
41. Consequently, I am satisfied that the Applicant has established a prima facie case with a probability of success.
42. Turning to the second limb, the Applicant avers that the suit property constitutes his matrimonial home where he resides with his wife and child. If the Respondent proceeds with the intended sale before the dispute is heard and determined, the Applicant and his family stand to lose possession of what is alleged to be their matrimonial home. While addressing the issue of damages, the court in Joseph Siro Mosioma v Housing Finance Company of Kenya & 3 Others [2008] KEHC 3673 (KLR) stated:-
“On my part, let me restate that damages is not automatic remedy when deciding whether to grant an injunction or not. Damages is not and cannot be a substitute for the loss which is occasioned by a clear breach of the Law ….a party cannot be condemned to take damages in lieu of his crystallized right which can be protected by an order of injunction.’’
43. In the present case, should the suit property be sold before the substantive issues surrounding the Applicant's alleged spousal rights are determined, the Applicant's claim may be rendered nugatory. I am therefore persuaded that the Applicant has demonstrated the likelihood of suffering irreparable harm incapable of adequate compensation by damages.
44. Finally, on the balance of convenience, I am guided by the decision in Amir Suleiman v Amboseli Resort Limited [2004] KLR , where Ojwang J. (as he then was) acknowledged the continued evolution of the principles governing interlocutory injunctions and adopted with approval the reasoning of Hoffmann J. in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 , that:
"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'."
45. Applying the foregoing principle to the present case, I find that the lower risk of injustice lies in preserving the suit property pending the hearing and determination of the suit. Should the Applicant ultimately fail, the Respondent will still be at liberty to exercise its statutory power of sale in accordance with the law.
46. Conversely, if the property is sold before the substantive issues concerning the Applicant's alleged spousal rights and the validity of the charge are determined, and the Applicant ultimately succeeds, the prejudice occasioned may not be capable of effective redress.
47. Accordingly, the balance of convenience tilts in favour of maintaining the status quo pending the hearing and determination of the suit.
48. In the premises, I find that the Applicant has satisfied the principles governing the grant of an interlocutory injunction.
DISPOSITION AND ORDERS
49. Flowing from the foregoing, I find that the Notice of Motion dated 24 th October 2024 is meritorious and the same is hereby allowed.
50. Consequently, an injunction is hereby issued in terms of Prayer IV of the Notice of Motion restraining the 1 st and 2 nd Respondents from dealing in any manner whatsoever with the suit property pending the hearing and determination of the main suit. In view of the grant of Prayer IV, the alternative relief sought under Prayer V does not arise for consideration.
51. The costs of this application shall abide the outcome of the main suit.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17 th DAY OF SEPTEMBER 2026.
MURUNGA, J
Delivered on virtual platform in the presence of:
Mwasi for the Applicant
Kimiti for the Respondent
Kevin Babu - Court Assistant