HCCC NO. E002 OF 2024
RULING
1. The application coming for consideration in this Ruling is the one dated 21 st August 2024 brought under Order 51 Rule 1, Order 40 Rule 1 of the Civil Procedure Rules 2010, Section 1A, 1B and 3A, 63E of the Civil Procedure Act Cap 21 Laws of Kenya and all enabling provisions of the law seeking the following orders:-
(i) THAT this application be certified urgent and service thereof be dispensed within the first instance.
(ii) THAT the Honorable Court be pleased to issue restraining orders against the Defendant/Respondent, its agents, servants of any other person acting on its instructions from selling, alienating or interfering in any manner with Parcel of Land LR No. 1956/967 pending the hearing and determination of this application.
(iii) THAT the Honourable Court be pleased to issue restraining orders against the Defendant/Respondent, its agents, servants of any other person acting on its instructions from selling, alienating or interfering in any manner with Parcel of land LR No 1956/967 pending the hearing and determination of the main suit.
(iv) THAT pending hearing and determination of the main suit, this Honorable Court be pleased to issue an order directing the Defendant/Respondent to table a reconciled statement of accounts for the loan facility taken by the Plaintiff/Applicant.
(v) THAT the Honorable court be pleased to grant such or further orders it deems fit to grant in the interest of justice.
(vi) THAT costs of this application be provided for.
2. The application is supported by the affidavit of Anthony Mbugua Malei sworn on 21 st August 2024 in which he deposed as follows:-
(i) THAT I am one of the director’s in the Applicant’s Company herein and well versed with matters in issue and hence competent to swear this affidavit..
(ii) THAT on the 3 rd November 2021, I charged my parcel of land reference No. 1956/967 to the Respondent for a loan amount of Kenya Shillings Ten Million One Hundred Thousand (Kshs. 10,100,000) together with interest and costs as agreed between the parties and to be paid at instalments of Kenya Shillings Two Hundred and Nine Thousand, Nine Hundred and Twenty-Seven Shillings (Kshs. 219,927.00) per month.
(iii) THAT the loan amount was advanced to me then I started servicing the loan when the loan fell into arrears and the bank through Watts Auction gave me a notice dated the 24 th June 2024 issuing me with a Forty-Five (45) days’ notice for payment of the arrears failure to which the bank would proceed and exercise the statutory power of sale.
(iv) THAT I responded to the bank explaining the factors which led to my inability to service the loan vide a letter dated 7 th August 2024 to the Respondent promising to make a deposit of Kenya Shillings Two Hundred Thousand (Kshs. 200,000.00) and at least payment of Kenya Shillings Fifty Thousand Shillings (Kshs. 50,000.00) every month with a promise of fully offsetting the loan arrears on or before One Hundred and Twenty (120) days.
(v) THAT I have already made a deposit of Kenya Shillings Two Hundred Thousand (Kshs. 200,000/-) Five Hundred Thousand Shillings (Kshs. 500,000/-) Five Hundred Shillings to the Kenya Commercial Bank Account and also Mpesa payments of Kenya Shililngs Two Hundred and One Thousand (Kshs, 201,000/-) which makes a total of Kenya Shillings One Million, Four Hundred and One Thousand Shillings Only (Kshs. 1,401,000/-).
(vi) THAT the Respondent failed to consider my letter which contained explanations and considerations that I had put in place to ensure that the loan arrears is offset within One hundred and Twenty (120) days but instead the Respondent insisted that public auction would proceed as earlier communicated through Watts Auction and the Forty Five (45) days statutory notice failure to which the Chargee shall proceed to exercise the statutory remedy under Section 96 (1) as read with Section 90 (3) of the Land Act No. 6 of 2012 and sell the charged property at the expiry of forty (40) days from the date of service of the notice.
(vii) THAT I take issue with how the property which is located at a prime area with upmarket facilities would depreciate instead of appreciating in value.
(viii) THAT in May 2024 the loan developed arrears and on the 24 th June 2024 the Respondent through Watts Auction issued me with a notice of Forty Five (45) days for payment of alleged loan arrears amount of Kshs. 9,015,461.74.
(ix) THAT I am shocked by the turn of events and the Respondent’s zealously refusal to consider my stipulated manner of offsetting the outstanding loan arrears.
(x) THAT I cannot understand why the Respondent has failed to acknowledge the amounts which I have already paid in the past few days to service the loan arrears.
(xi) THAT from the Forty Five (45) days statutory notice issued by the Respondent to me, it is simply saying that I have failed to attempt to repay the loan arrears amount.
(xii) THAT I am apprehensive that should the court fail to intervene in the matter and issue the orders sought, I am likely to lose my prime property at throw away price as well as the amount of money which I have already paid to the Respondent as service to the loan pursuant to the charge created against the property.
(xiii) THAT it is only fair and just that the orders are granted as to enable me defend my property from unscrupulous scheme which is determined to impoverish me.
(xiv) THAT I swear this affidavit in support of my application herein for grant of injunctive orders against the Defendant/Respondent.
(xv) THAT the Respondent herein will suffer no hard if this application is allowed in terms of the orders sought being granted.
3. The Respondent filed a Replying Affidavit dated ……….. 2025 in which it is deposed as follows:-
4. The Applicant filed a supplementary affidavit dated 12 th September 2024 in which he deposed as follows:-
(i) THAT I am one of the Director’s in the Plaintiff’s Company herein and well versed with this matter herein hence competent to swear this affidavit.
(ii) THAT I confirm to this Honorable Court that on 4 th September 2024 I paid Kenya Shillings Two Hundred and Forty-Eight Thousand Only (Kshs. 248,000/=) towards settling the loan.
(iii) THAT additionally on the same date I deposited Kenya Shillings Five Hundred Thousand Shillings Only (Kshs. 500,000/=).
(iv) THAT on 5 th September 2024 I paid Kenya Shillings One Hundred and Sixty-Three Thousand Only (Kshs. 163,000/=).
(v) THAT additionally on 10 th September 2024 I paid a Kenya Shillings Nine Hundred Thousand Shillings Only (Kshs. 900,000/=).
(vi) THAT so far after filing the suit I have paid a total of Kenya Shillings One Million, Eight Hundred and Eleven Thousand only (Kshs. 1,811,000/=) in bid to offset the loan.
(vii) THAT I have shown serious commitments to settle the loan despite the Defendant/Respondent not following the procedure for statutory power of sale.
5. The parties filed written submissions as follows; The Plaintiff submitted that the court should grant interim orders against Kenya Commercial Bank.
6. The main prayer is for a restraining order to halt the bank's threatened sale of the charged property, LR NO.1956/967, pending the outcome of the main suit.
7. The Plaintiff further submitted that such an injunction is justified under the established principles set out in Giella vs Cassman Brown.
8. The Plaintiff contends it has demonstrated a prima facie case with a probability of success.
9. It acknowledges falling into arrears on a loan of Kshs.10,100,000 but asserts it responded to the bank's 45-day notice with payment proposals, which were allegedly disregarded.
10. The Bank's insistence on selling the property after only 40 days is presented as a denial of the Plaintiff's right to the equity of redemption and a failure to consider its demonstrated good faith and willingness to settle the arrears.
11. On the issue of irreparable injury, the Plaintiff argues that the sale of the property at a "throw away price" would constitute a substantial and demonstrable harm.
12. The land is described as prime, and its loss would not be adequately compensated by damages, as monetary compensation cannot truly remedy the loss of property, a point supported by reference to constitutional property rights under Article 40 and judicial precedent noting the emotional and unique value of land.
13. Regarding the balance of convenience, the Plaintiff submits that the greater harm would befall it if the injunction is refused and the sale proceeds, compared to any inconvenience the Bank might suffer from a temporary delay.
14. The threat of losing its property forever outweighs the Bank's temporary postponement in recovering the debt.
15. Additionally, the Plaintiff seeks an order compelling the Bank to provide a reconciled statement of accounts for the loan facility, aiming to clarify the exact outstanding amount.
16. Finally, on costs, the Plaintiff prays that the Defendant be ordered to bear the costs of this application.
17. It invokes the general principle that costs follow the event and argues that it was compelled to initiate these proceedings due to the Bank's actions.
18. In conclusion, the Plaintiff prays for the Court's discretion to be exercised in its favour by granting the restraining orders and the ancillary directions sought.
19. The Defendant/Respondent submitted that the Plaintiff/Applicant's request for an injunction to halt the sale of the charged property should be dismissed in its entirety.
20. The Defendant asserts that the Plaintiff has failed to satisfy any of the legal prerequisites for granting such interim relief.
21. Fundamentally, the Plaintiff admits to defaulting on the loan facility, which lawfully triggered the Defendant's statutory power of sale.
22. The Defendant meticulously details its compliance with every statutory requirement under the Land Act and Auctioneers Rules, including issuing the mandatory three-month and forty-day notices, obtaining a forced sale valuation, and serving all requisite redemption and sale notifications.
23. Consequently, the Defendant contends that the Plaintiff has not demonstrated a prima facie case, as no legal right has been infringed.
24. Furthermore, the submissions argue that the Plaintiff would not suffer irreparable injury, as any potential loss from the sale is quantifiable and can be adequately compensated by damages.
25. The balance of convenience is also said to favour the Defendant, who is lawfully seeking to recover a substantial debt, while the Plaintiff has shown no greater inconvenience it would suffer.
26. Additionally, the Defendant challenges the ancillary prayer for a reconciled statement of accounts, noting it is not a relief sought in the main suit and is therefore legally untenable as an interlocutory order.
27. In conclusion, the Defendant urges the Court to dismiss the application with costs awarded to the Defendant.
28. The Court is called upon to determine the Plaintiff/Applicant’s Notice of Motion dated 21st August 2024.
29. The main issue for determination is whether the Plaintiff/Applicant is entitled to an interlocutory injunction to restrain the Defendant/Respondent bank from selling the charged property, L.R. No. 1956/967, pending the hearing and determination of the main suit.
30. The Applicant further seeks an order compelling the Respondent to furnish a reconciled statement of accounts.
31. The established principles for granting an interlocutory injunction in Kenya are well-settled in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358.
32. An applicant must demonstrate, first, a prima facie case with a probability of success; second, that he will suffer irreparable injury which cannot be adequately compensated by an award of damages if the injunction is not granted; and third, if the court is in doubt, it will decide the application on a balance of convenience.
33. On the first condition, the Applicant admits to having defaulted on the loan facility, which led to the issuance of statutory notices.
34. The core of its case is that the Respondent failed to consider its proposals for settling the arrears and is proceeding with undue haste.
35. However, a mere proposal to repay or a promise to liquidate arrears does not invalidate a statutory notice that is otherwise properly issued.
36. The equity of redemption exists until the property is sold, but its exercise is subject to the chargor complying with the lawful demands of the chargee.
37. From the material presented by the Respondent, and which has not been substantively challenged, it appears that all requisite notices under Sections 90 and 96 of the Land Act, 2012, and the Auctioneers Rules were issued and served.
38. Where a chargor is in default and the chargee has complied with the statutory prerequisites, the chargor’s prima facie case for an injunction is extinguished.
39. The Applicant’s subsequent payments, while demonstrating a willingness to pay, do not in themselves impugn the validity of the Respondent’s accrued right to exercise the statutory power of sale.
40. Consequently, the Applicant has not demonstrated a prima facie case with a probability of success at the trial.
41. Regarding the second condition of irreparable injury, the Applicant contends that the sale of its prime property at a "throw away price" would cause it irreparable harm.
42. While the Court acknowledges the unique value an individual may attach to their property, the legal concept of irreparable injury refers to that which cannot be atoned for by damages.
43. In a mortgage transaction such as this, the injury complained of is essentially financial and quantifiable.
44. The loss of property held as security for a debt is ordinarily compensable by damages.
45. If the sale were ultimately found to be unlawful, the remedy in damages against a reputable financial institution like the Respondent would be adequate.
46. The Applicant’s fear of a sale at an undervalue, without cogent evidence of the proposed reserve price being fraudulent or sham, is speculative and cannot form the basis for a finding of irreparable injury.
47. On the balance of convenience, this scale tilts in favour of the Respondent.
48. The Applicant is in admitted default of a substantial debt. To grant an injunction in such circumstances would be to deprive a secured creditor of its primary contractual and statutory remedy without any firm undertaking or evidence from the Applicant to clear the debt within a short, fixed period.
49. The inconvenience to the Respondent of further indefinite delay in recovering its lawfully due debt outweighs the inconvenience to the Applicant, who retains the right to redeem the property by paying the outstanding sum at any time before the sale is completed.
50. Concerning the prayer for an order compelling the Respondent to table a reconciled statement of accounts, this is an interlocutory application.
51. The reliefs sought at this stage must be preservatory in nature, aimed at maintaining the status quo.
52. An order for the production of accounts is, in essence, a discovery or audit exercise more suited for the trial process or a specific application under the relevant provisions of the Civil Procedure Rules.
53. It is not a typical preservatory order and granting it at this juncture would be premature. This prayer is therefore declined.
54. In conclusion, having found that the Applicant has not satisfied the threefold test set out in Giella v Cassman Brown , the application for an interlocutory injunction must fail.
55. The overriding objective of the Civil Procedure Act, as encapsulated in Sections 1A and 1B, mandates the Court to facilitate the just, expeditious, and proportionate resolution of disputes.
56. In this case, where the Applicant’s default is conceded and the Respondent’s compliance with statutory procedures is prima facie demonstrated, justice does not lie in restraining the Respondent from exercising its clear contractual and statutory rights.
57. Consequently, the Plaintiff/Applicant’s Notice of Motion dated 21st August 2024 is hereby dismissed in its entirety.
58. The costs of the application shall be borne by the Applicant.
Dated, signed and delivered this 22 nd day of December 2025 in open court at Voi High Court.
ASENATH ONGERI
JUDGE
Page 7 of 7
RULING
1. The application coming for consideration in this Ruling is the one dated 21 st August 2024 brought under Order 51 Rule 1, Order 40 Rule 1 of the Civil Procedure Rules 2010, Section 1A, 1B and 3A, 63E of the Civil Procedure Act Cap 21 Laws of Kenya and all enabling provisions of the law seeking the following orders:-
(i) THAT this application be certified urgent and service thereof be dispensed within the first instance.
(ii) THAT the Honorable Court be pleased to issue restraining orders against the Defendant/Respondent, its agents, servants of any other person acting on its instructions from selling, alienating or interfering in any manner with Parcel of Land LR No. 1956/967 pending the hearing and determination of this application.
(iii) THAT the Honourable Court be pleased to issue restraining orders against the Defendant/Respondent, its agents, servants of any other person acting on its instructions from selling, alienating or interfering in any manner with Parcel of land LR No 1956/967 pending the hearing and determination of the main suit.
(iv) THAT pending hearing and determination of the main suit, this Honorable Court be pleased to issue an order directing the Defendant/Respondent to table a reconciled statement of accounts for the loan facility taken by the Plaintiff/Applicant.
(v) THAT the Honorable court be pleased to grant such or further orders it deems fit to grant in the interest of justice.
(vi) THAT costs of this application be provided for.
2. The application is supported by the affidavit of Anthony Mbugua Malei sworn on 21 st August 2024 in which he deposed as follows:-
(i) THAT I am one of the director’s in the Applicant’s Company herein and well versed with matters in issue and hence competent to swear this affidavit..
(ii) THAT on the 3 rd November 2021, I charged my parcel of land reference No. 1956/967 to the Respondent for a loan amount of Kenya Shillings Ten Million One Hundred Thousand (Kshs. 10,100,000) together with interest and costs as agreed between the parties and to be paid at instalments of Kenya Shillings Two Hundred and Nine Thousand, Nine Hundred and Twenty-Seven Shillings (Kshs. 219,927.00) per month.
(iii) THAT the loan amount was advanced to me then I started servicing the loan when the loan fell into arrears and the bank through Watts Auction gave me a notice dated the 24 th June 2024 issuing me with a Forty-Five (45) days’ notice for payment of the arrears failure to which the bank would proceed and exercise the statutory power of sale.
(iv) THAT I responded to the bank explaining the factors which led to my inability to service the loan vide a letter dated 7 th August 2024 to the Respondent promising to make a deposit of Kenya Shillings Two Hundred Thousand (Kshs. 200,000.00) and at least payment of Kenya Shillings Fifty Thousand Shillings (Kshs. 50,000.00) every month with a promise of fully offsetting the loan arrears on or before One Hundred and Twenty (120) days.
(v) THAT I have already made a deposit of Kenya Shillings Two Hundred Thousand (Kshs. 200,000/-) Five Hundred Thousand Shillings (Kshs. 500,000/-) Five Hundred Shillings to the Kenya Commercial Bank Account and also Mpesa payments of Kenya Shililngs Two Hundred and One Thousand (Kshs, 201,000/-) which makes a total of Kenya Shillings One Million, Four Hundred and One Thousand Shillings Only (Kshs. 1,401,000/-).
(vi) THAT the Respondent failed to consider my letter which contained explanations and considerations that I had put in place to ensure that the loan arrears is offset within One hundred and Twenty (120) days but instead the Respondent insisted that public auction would proceed as earlier communicated through Watts Auction and the Forty Five (45) days statutory notice failure to which the Chargee shall proceed to exercise the statutory remedy under Section 96 (1) as read with Section 90 (3) of the Land Act No. 6 of 2012 and sell the charged property at the expiry of forty (40) days from the date of service of the notice.
(vii) THAT I take issue with how the property which is located at a prime area with upmarket facilities would depreciate instead of appreciating in value.
(viii) THAT in May 2024 the loan developed arrears and on the 24 th June 2024 the Respondent through Watts Auction issued me with a notice of Forty Five (45) days for payment of alleged loan arrears amount of Kshs. 9,015,461.74.
(ix) THAT I am shocked by the turn of events and the Respondent’s zealously refusal to consider my stipulated manner of offsetting the outstanding loan arrears.
(x) THAT I cannot understand why the Respondent has failed to acknowledge the amounts which I have already paid in the past few days to service the loan arrears.
(xi) THAT from the Forty Five (45) days statutory notice issued by the Respondent to me, it is simply saying that I have failed to attempt to repay the loan arrears amount.
(xii) THAT I am apprehensive that should the court fail to intervene in the matter and issue the orders sought, I am likely to lose my prime property at throw away price as well as the amount of money which I have already paid to the Respondent as service to the loan pursuant to the charge created against the property.
(xiii) THAT it is only fair and just that the orders are granted as to enable me defend my property from unscrupulous scheme which is determined to impoverish me.
(xiv) THAT I swear this affidavit in support of my application herein for grant of injunctive orders against the Defendant/Respondent.
(xv) THAT the Respondent herein will suffer no hard if this application is allowed in terms of the orders sought being granted.
3. The Respondent filed a Replying Affidavit dated ……….. 2025 in which it is deposed as follows:-
4. The Applicant filed a supplementary affidavit dated 12 th September 2024 in which he deposed as follows:-
(i) THAT I am one of the Director’s in the Plaintiff’s Company herein and well versed with this matter herein hence competent to swear this affidavit.
(ii) THAT I confirm to this Honorable Court that on 4 th September 2024 I paid Kenya Shillings Two Hundred and Forty-Eight Thousand Only (Kshs. 248,000/=) towards settling the loan.
(iii) THAT additionally on the same date I deposited Kenya Shillings Five Hundred Thousand Shillings Only (Kshs. 500,000/=).
(iv) THAT on 5 th September 2024 I paid Kenya Shillings One Hundred and Sixty-Three Thousand Only (Kshs. 163,000/=).
(v) THAT additionally on 10 th September 2024 I paid a Kenya Shillings Nine Hundred Thousand Shillings Only (Kshs. 900,000/=).
(vi) THAT so far after filing the suit I have paid a total of Kenya Shillings One Million, Eight Hundred and Eleven Thousand only (Kshs. 1,811,000/=) in bid to offset the loan.
(vii) THAT I have shown serious commitments to settle the loan despite the Defendant/Respondent not following the procedure for statutory power of sale.
5. The parties filed written submissions as follows; The Plaintiff submitted that the court should grant interim orders against Kenya Commercial Bank.
6. The main prayer is for a restraining order to halt the bank's threatened sale of the charged property, LR NO.1956/967, pending the outcome of the main suit.
7. The Plaintiff further submitted that such an injunction is justified under the established principles set out in Giella vs Cassman Brown.
8. The Plaintiff contends it has demonstrated a prima facie case with a probability of success.
9. It acknowledges falling into arrears on a loan of Kshs.10,100,000 but asserts it responded to the bank's 45-day notice with payment proposals, which were allegedly disregarded.
10. The Bank's insistence on selling the property after only 40 days is presented as a denial of the Plaintiff's right to the equity of redemption and a failure to consider its demonstrated good faith and willingness to settle the arrears.
11. On the issue of irreparable injury, the Plaintiff argues that the sale of the property at a "throw away price" would constitute a substantial and demonstrable harm.
12. The land is described as prime, and its loss would not be adequately compensated by damages, as monetary compensation cannot truly remedy the loss of property, a point supported by reference to constitutional property rights under Article 40 and judicial precedent noting the emotional and unique value of land.
13. Regarding the balance of convenience, the Plaintiff submits that the greater harm would befall it if the injunction is refused and the sale proceeds, compared to any inconvenience the Bank might suffer from a temporary delay.
14. The threat of losing its property forever outweighs the Bank's temporary postponement in recovering the debt.
15. Additionally, the Plaintiff seeks an order compelling the Bank to provide a reconciled statement of accounts for the loan facility, aiming to clarify the exact outstanding amount.
16. Finally, on costs, the Plaintiff prays that the Defendant be ordered to bear the costs of this application.
17. It invokes the general principle that costs follow the event and argues that it was compelled to initiate these proceedings due to the Bank's actions.
18. In conclusion, the Plaintiff prays for the Court's discretion to be exercised in its favour by granting the restraining orders and the ancillary directions sought.
19. The Defendant/Respondent submitted that the Plaintiff/Applicant's request for an injunction to halt the sale of the charged property should be dismissed in its entirety.
20. The Defendant asserts that the Plaintiff has failed to satisfy any of the legal prerequisites for granting such interim relief.
21. Fundamentally, the Plaintiff admits to defaulting on the loan facility, which lawfully triggered the Defendant's statutory power of sale.
22. The Defendant meticulously details its compliance with every statutory requirement under the Land Act and Auctioneers Rules, including issuing the mandatory three-month and forty-day notices, obtaining a forced sale valuation, and serving all requisite redemption and sale notifications.
23. Consequently, the Defendant contends that the Plaintiff has not demonstrated a prima facie case, as no legal right has been infringed.
24. Furthermore, the submissions argue that the Plaintiff would not suffer irreparable injury, as any potential loss from the sale is quantifiable and can be adequately compensated by damages.
25. The balance of convenience is also said to favour the Defendant, who is lawfully seeking to recover a substantial debt, while the Plaintiff has shown no greater inconvenience it would suffer.
26. Additionally, the Defendant challenges the ancillary prayer for a reconciled statement of accounts, noting it is not a relief sought in the main suit and is therefore legally untenable as an interlocutory order.
27. In conclusion, the Defendant urges the Court to dismiss the application with costs awarded to the Defendant.
28. The Court is called upon to determine the Plaintiff/Applicant’s Notice of Motion dated 21st August 2024.
29. The main issue for determination is whether the Plaintiff/Applicant is entitled to an interlocutory injunction to restrain the Defendant/Respondent bank from selling the charged property, L.R. No. 1956/967, pending the hearing and determination of the main suit.
30. The Applicant further seeks an order compelling the Respondent to furnish a reconciled statement of accounts.
31. The established principles for granting an interlocutory injunction in Kenya are well-settled in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358.
32. An applicant must demonstrate, first, a prima facie case with a probability of success; second, that he will suffer irreparable injury which cannot be adequately compensated by an award of damages if the injunction is not granted; and third, if the court is in doubt, it will decide the application on a balance of convenience.
33. On the first condition, the Applicant admits to having defaulted on the loan facility, which led to the issuance of statutory notices.
34. The core of its case is that the Respondent failed to consider its proposals for settling the arrears and is proceeding with undue haste.
35. However, a mere proposal to repay or a promise to liquidate arrears does not invalidate a statutory notice that is otherwise properly issued.
36. The equity of redemption exists until the property is sold, but its exercise is subject to the chargor complying with the lawful demands of the chargee.
37. From the material presented by the Respondent, and which has not been substantively challenged, it appears that all requisite notices under Sections 90 and 96 of the Land Act, 2012, and the Auctioneers Rules were issued and served.
38. Where a chargor is in default and the chargee has complied with the statutory prerequisites, the chargor’s prima facie case for an injunction is extinguished.
39. The Applicant’s subsequent payments, while demonstrating a willingness to pay, do not in themselves impugn the validity of the Respondent’s accrued right to exercise the statutory power of sale.
40. Consequently, the Applicant has not demonstrated a prima facie case with a probability of success at the trial.
41. Regarding the second condition of irreparable injury, the Applicant contends that the sale of its prime property at a "throw away price" would cause it irreparable harm.
42. While the Court acknowledges the unique value an individual may attach to their property, the legal concept of irreparable injury refers to that which cannot be atoned for by damages.
43. In a mortgage transaction such as this, the injury complained of is essentially financial and quantifiable.
44. The loss of property held as security for a debt is ordinarily compensable by damages.
45. If the sale were ultimately found to be unlawful, the remedy in damages against a reputable financial institution like the Respondent would be adequate.
46. The Applicant’s fear of a sale at an undervalue, without cogent evidence of the proposed reserve price being fraudulent or sham, is speculative and cannot form the basis for a finding of irreparable injury.
47. On the balance of convenience, this scale tilts in favour of the Respondent.
48. The Applicant is in admitted default of a substantial debt. To grant an injunction in such circumstances would be to deprive a secured creditor of its primary contractual and statutory remedy without any firm undertaking or evidence from the Applicant to clear the debt within a short, fixed period.
49. The inconvenience to the Respondent of further indefinite delay in recovering its lawfully due debt outweighs the inconvenience to the Applicant, who retains the right to redeem the property by paying the outstanding sum at any time before the sale is completed.
50. Concerning the prayer for an order compelling the Respondent to table a reconciled statement of accounts, this is an interlocutory application.
51. The reliefs sought at this stage must be preservatory in nature, aimed at maintaining the status quo.
52. An order for the production of accounts is, in essence, a discovery or audit exercise more suited for the trial process or a specific application under the relevant provisions of the Civil Procedure Rules.
53. It is not a typical preservatory order and granting it at this juncture would be premature. This prayer is therefore declined.
54. In conclusion, having found that the Applicant has not satisfied the threefold test set out in Giella v Cassman Brown , the application for an interlocutory injunction must fail.
55. The overriding objective of the Civil Procedure Act, as encapsulated in Sections 1A and 1B, mandates the Court to facilitate the just, expeditious, and proportionate resolution of disputes.
56. In this case, where the Applicant’s default is conceded and the Respondent’s compliance with statutory procedures is prima facie demonstrated, justice does not lie in restraining the Respondent from exercising its clear contractual and statutory rights.
57. Consequently, the Plaintiff/Applicant’s Notice of Motion dated 21st August 2024 is hereby dismissed in its entirety.
58. The costs of the application shall be borne by the Applicant.
Dated, signed and delivered this 22 nd day of December 2025 in open court at Voi High Court.
ASENATH ONGERI
JUDGE
Page 7 of 7