Introduction and Background
1. By the Notice of Motion dated 9 th October 2025, the Plaintiff seeks an injunction to stop the sale of the property, Eldoret Municipality Block 14/307 (“the suit property”). The application is supported by the grounds on its face and the affidavits of the Plaintiff’s director, PETER MACHARIA MURUGU and its advocate PETER MBITHI sworn on 9 th October 2025 and 14 th January 2026 respectively.
2. The Defendant (“the Bank”) opposes the application through the replying affidavit of its Senior Manager, SAMUEL K. KIMANI, sworn on 14 th November 2025. The application was canvassed by way of written submissions which are on record and which together with the pleadings I have considered and I will be making relevant references to in my analysis and determination below.
Analysis and determination
3. From the parties’ submissions, three issues are up for the court’s determination:
i. Whether the Plaintiff’s advocate is properly on record
ii. Whether the court is functus officio in light of the Mediation Settlement Agreement dated 19 th May 2025 which was adopted as a judgment of the court
iii. Whether the Plaintiff has met the requisite threshold for the grant of interim orders of injunction
Propriety of the Plaintiff’s advocates
4. The Bank avers that after the judgment was entered on 17 th June 2025, the Plaintiff changed advocates and a new law firm, M/s Mutuku Mbithi & Butoyi Advocates came on record without first obtaining the court's leave, as is mandatory under Order 9 Rule 9 of the Civil Procedure Rules and therefore the application filed by them is invalid. In response, the Plaintiff depones that the Plaintiff's advocates have been on record since the suit was filed and that in April 2025, they were served with a Notice of Change of Advocates by E. Onono, Advocate, but that notice was never filed in court and because the notice was never filed, it has no legal effect. Therefore, it maintains that the Plaintiff's present advocates remain properly on record and are fully competent to file this application.
5. Whereas it is true that under Order 9 Rule 9 of the Rules, when there is a change of advocate after judgment has been entered, the new advocate must either obtain leave of the court or enter into a consent with the outgoing advocate, I also note that Order 9 Rule 5 of the Rules provides as follows:
A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.
6. From the above, a notice of change of advocate only takes effect once it is filed in court and served. Since the Bank only provided evidence of service, that is, the email acknowledging receipt of the notice, but no evidence that the notice was ever filed in court, the change was never legally completed. Therefore, the previous and present advocates, M/s Mutuku Mbithi & Butoyi remain the advocates of record and are competent to file the application. If a notice is never filed, Order 9 Rule 9 is never even triggered because, legally speaking, no change of advocates ever occurred and I agree with the Plaintiff’s submission that this is also manifest from the court record and the case tracking system (CTS). This objection by the Bank therefore fails.
Functus Officio
7. It is also the Bank’s objection that the court is functus officio considering the dispute was finally settled through a Mediation Settlement Agreement dated 19 th May 2025, which was adopted as a final judgment of the court. That the case file has been marked as closed and no new applications or interim orders can be issued in a case that has already been fully determined. I am in agreement with the Plaintiff’s submission that the doctrine of functus officio applies to a situation where the Court has pronounced itself on merits, however, it does not command that the moment the court delivers its judgment in a matter then it becomes an abomination to handle all and every other consequent, complementary, supplementary and necessary facilitative processes (see Mombasa Bricks & Tiles Limited & 5 others v Arvind Shah & 7 others [2018] KEHC 5216 (KLR)]. The court retains power to handle incidental matters like stay of execution, review, settlement of decree, and enforcement of a decree.
8. What the court cannot do is re-try the merits of the case or change its decision. Going through the application, I cannot say that the Plaintiff is trying to re-try the case by asking to change the mediation agreement or reduce the amount owed. It is asking the court to do exactly what Mombasa Bricks(supra) held that a court retains jurisdiction to do which is grant a stay of execution and handle incidental proceedings as the application is a direct consequence of the judgment and not a new, independent dispute.
9. Whereas I note that the Bank has cited the case of Alios Finance Kenya Ltd v Country Farms Ltd [2022] KEHC 11012 (KLR) to advance its position that an injunction cannot be sought post-judgment, that case is distinguishable from the present case as in the former, the mediation agreement required the parties to negotiate and execute a "Supplemental Hire Purchase Offer Letter" but when the respondent therein did not like the terms of that letter, it went back to court and asked for an injunction to stop repossession until further negotiations were completed. The court held that the mediation agreement was adopted as a judgment and one cannot go back to court to force more negotiations or to change the terms the parties already agreed to. In any case, the court was explicit at para. 30 that it could “…intervene in post-judgment applications relating to the execution of the terms of the said Mediation Settlement Agreement”. Therefore, a reading of the full judgment shows that the court's problem was not with any injunction but an injunction that sought to re-open negotiations and change agreed terms. The Plaintiff is asking the court to stop the Bank from executing the judgment before the 60-day stay period expired which is to me a post-judgment application relating to execution. I reject this objection by the Bank as well.
Injunction
10. Turning to the merits of the application, I do not think it is in dispute that for the Plaintiff to obtain the injunction, it must demonstrate that it has a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt show that the balance of convenience is in its favour (See Giella v Cassman Brown & Co., Ltd. [1973] E.A. 358). In Nguruman Limited v Jan Bonde Nielsen& 2 others [2013] KECA 347 (KLR), the Court of Appeal reiterated these conditions and further clarified that they are to be applied as separate, distinct and logical hurdles which an applicant is expected to surmount sequentially. This means that if the applicant does not establish a prima facie case, then irreparable injury and balance of convenience do not require consideration. On the other hand, if a prima facie case is established, then the court will consider the other conditions.
11. As to what constitutes a prima facie case, the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) explained that it is, “….a case in 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 to call for an explanation or rebuttal from the latter.”
12. The Plaintiff’s case is that the dispute began over a loan facility of Kshs. 35,000,000.00 taken from the Bank in 2015. The matter was referred to mediation, and on 17 th June 2025, the court adopted the parties’ mediation agreement as a judgment. That under the Agreement, the Plaintiff was to pay the Bank Kshs. 16,000,000.00 within 60 days and that the court granted a 60-day stay of execution from the date of judgment, giving the Plaintiff time to pay. That the Interested Party (“the Auctioneer”) served a statutory notice of sale on 4 th August 2025 which was only 46 days after the judgment, before the 60-day stay expired and that the amount demanded in the notice, Kshs. 19,401,960.41 is higher than the agreed judgment sum of Kshs. 16,000,000.00 and further, the Plaintiff obtained a professional valuation showing the property is worth Kshs. 43,000,000.00
13. The Plaintiff contends that the Auctioneer's valuation is much lower returning an open market value of Kshs. 24,000,000.00 and forced sale value of Kshs. 18,000,000.00 compared to the Bank's own 2015 valuation of over Kshs. 35,000,000.00. It states that selling the property so quickly at a low price would be a great injustice and would thwart the Plaintiff's efforts to find a buyer and pay the debt as agreed.
14. In its response, the Bank depones that the 60 days for the Plaintiff to pay the Kshs. 16,000,000.00 started on 19 th May 2025 on the date of signing the Agreement and that the 60 days expired on 19 th July 2025 and the Plaintiff still had not paid. That when the Plaintiff failed to pay, the Agreement lapsed automatically, and the Bank became entitled to sell the suit property and the statutory notices for sale were issued and served after this default.
15. The Bank avers that it followed the correct process by issuing all required statutory notices; that is a 90-Day Statutory Demand Notice dated 25 th February 2025, a 40-Day Notification of Sale dated 29 th May 2025 and the 45-day redemption notice from the Auctioneer was served on the Plaintiff. That the Bank obtained a professional valuation from Nwest Valuers Limited dated 31 st July 2025 and this valuation is in compliance with all applicable standards and that the Plaintiff's claim that the property is undervalued is simply speculation and an attempt to mislead the court. Further, that this would also be a new issue on a concluded matter.
16. The Bank states that the Plaintiff's loan is still in huge arrears and as of 14 th November 2025, the amount due was Kshs. 19,834,460.41, which continues to accrue interest and a chargor cannot stop a bank from selling a charged property unless they offer to pay the full amount demanded, which the Plaintiff has not done. For these reasons, the Bank urges the court to dismiss the Plaintiff's application with costs.
17. The determination of this issue turns to the interpretation of the Mediation Agreement and the court’s order. It is not in dispute that Clause 4 of the Agreement states that the 60 days run from "…the date of signing this Settlement Agreement” . It is also not disputed that this court adopted the agreement as a judgment of the court on 17 th June 2025 and the court granted the Plaintiff a stay of execution for 60 days. The Bank is correct in stating that once the parties signed the Agreement, the 60-day clock started running as a contractual deadline. However, once the judgment was adopted as a decree of the court and granted a stay of execution for 60 days, the 60-day stay becomes a court order and the Bank could not sell the suit property during the 60-day stay without violating a court order. As such, the court-ordered 60-day stay begun to run from the date of adoption on 17 th June 2025 because the stay was now a court order, not a contractual term. The Bank's argument appears to confuse contractual bindingness with court decree enforcement and yet the two are not the same.
18. I am therefore in agreement with the Plaintiff's position that the 60-day stay begun running from the date of court adoption. The Bank itself treated the mediation agreement as not yet binding when it issued the 40-day Notification of Sale on 29 th May 2025 because that was before the court adopted the agreement as a judgment on 17 th June 2025. If the Bank believed the 60 days started on 19 th May 2025, why did it issue a notice on 29 th May 2025 only 10 days into the 60-day period? This suggests the Bank knew the court's adoption of the Agreement was still pending.
19. Ideally, the Plaintiff has made out a prima facie case. However, even if the court agrees with the Plaintiff that the 60 days started on 17 th June 2025, that deadline was 17 th August 2025. We are in June 2026, which is approximately 10 months later and the Plaintiff has not paid the Kshs. 16,000,000.00. The Plaintiff's own valuation report suggests the property has more than enough value to cover the debt so why has it not sold the property privately and paid the Bank? The Plaintiff’s answer that the Bank's sale process scared away buyers cannot be an excuse that lasts forever. At some point, the Plaintiff must either pay or accept the consequences and the court cannot grant an injunction indefinitely when the underlying debt remains unpaid and the agreed time, whichever date either party picks, has long passed.
20. It is clear that the Plaintiff faces a serious problem of mootness or delay. The Plaintiff has had approximately 10 months since then to pay the Kshs. 16,000,000.00, obtain a buyer and complete a private sale or seek alternative financing. The Plaintiff has done none of these things. Even if I am to assume that the suit property valuation is in contention, any loss is quantifiable in damages and the Plaintiff can always seek compensation in a separate suit later on. The balance of convenience tilts in favour of the Bank at this point as the debt continues to grow, the Plaintiff has had 10 months to pay and the Bank is entitled to recover its money.
Conclusion and Disposition
21. As this juncture, the only action that affords the Plaintiff’s application dated 9 th October 2025 is dismissal and I thus dismiss it but with no order as to costs.
DATED SIGNED AND DELIVERED virtually this 31 st DAY OF JUNE 2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. N/A for the Applicant
2. Ms. Mutonyi for the Respondent
3. Amos- Court Assistant
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1. By the Notice of Motion dated 9 th October 2025, the Plaintiff seeks an injunction to stop the sale of the property, Eldoret Municipality Block 14/307 (“the suit property”). The application is supported by the grounds on its face and the affidavits of the Plaintiff’s director, PETER MACHARIA MURUGU and its advocate PETER MBITHI sworn on 9 th October 2025 and 14 th January 2026 respectively.
2. The Defendant (“the Bank”) opposes the application through the replying affidavit of its Senior Manager, SAMUEL K. KIMANI, sworn on 14 th November 2025. The application was canvassed by way of written submissions which are on record and which together with the pleadings I have considered and I will be making relevant references to in my analysis and determination below.
Analysis and determination
3. From the parties’ submissions, three issues are up for the court’s determination:
i. Whether the Plaintiff’s advocate is properly on record
ii. Whether the court is functus officio in light of the Mediation Settlement Agreement dated 19 th May 2025 which was adopted as a judgment of the court
iii. Whether the Plaintiff has met the requisite threshold for the grant of interim orders of injunction
Propriety of the Plaintiff’s advocates
4. The Bank avers that after the judgment was entered on 17 th June 2025, the Plaintiff changed advocates and a new law firm, M/s Mutuku Mbithi & Butoyi Advocates came on record without first obtaining the court's leave, as is mandatory under Order 9 Rule 9 of the Civil Procedure Rules and therefore the application filed by them is invalid. In response, the Plaintiff depones that the Plaintiff's advocates have been on record since the suit was filed and that in April 2025, they were served with a Notice of Change of Advocates by E. Onono, Advocate, but that notice was never filed in court and because the notice was never filed, it has no legal effect. Therefore, it maintains that the Plaintiff's present advocates remain properly on record and are fully competent to file this application.
5. Whereas it is true that under Order 9 Rule 9 of the Rules, when there is a change of advocate after judgment has been entered, the new advocate must either obtain leave of the court or enter into a consent with the outgoing advocate, I also note that Order 9 Rule 5 of the Rules provides as follows:
A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.
6. From the above, a notice of change of advocate only takes effect once it is filed in court and served. Since the Bank only provided evidence of service, that is, the email acknowledging receipt of the notice, but no evidence that the notice was ever filed in court, the change was never legally completed. Therefore, the previous and present advocates, M/s Mutuku Mbithi & Butoyi remain the advocates of record and are competent to file the application. If a notice is never filed, Order 9 Rule 9 is never even triggered because, legally speaking, no change of advocates ever occurred and I agree with the Plaintiff’s submission that this is also manifest from the court record and the case tracking system (CTS). This objection by the Bank therefore fails.
Functus Officio
7. It is also the Bank’s objection that the court is functus officio considering the dispute was finally settled through a Mediation Settlement Agreement dated 19 th May 2025, which was adopted as a final judgment of the court. That the case file has been marked as closed and no new applications or interim orders can be issued in a case that has already been fully determined. I am in agreement with the Plaintiff’s submission that the doctrine of functus officio applies to a situation where the Court has pronounced itself on merits, however, it does not command that the moment the court delivers its judgment in a matter then it becomes an abomination to handle all and every other consequent, complementary, supplementary and necessary facilitative processes (see Mombasa Bricks & Tiles Limited & 5 others v Arvind Shah & 7 others [2018] KEHC 5216 (KLR)]. The court retains power to handle incidental matters like stay of execution, review, settlement of decree, and enforcement of a decree.
8. What the court cannot do is re-try the merits of the case or change its decision. Going through the application, I cannot say that the Plaintiff is trying to re-try the case by asking to change the mediation agreement or reduce the amount owed. It is asking the court to do exactly what Mombasa Bricks(supra) held that a court retains jurisdiction to do which is grant a stay of execution and handle incidental proceedings as the application is a direct consequence of the judgment and not a new, independent dispute.
9. Whereas I note that the Bank has cited the case of Alios Finance Kenya Ltd v Country Farms Ltd [2022] KEHC 11012 (KLR) to advance its position that an injunction cannot be sought post-judgment, that case is distinguishable from the present case as in the former, the mediation agreement required the parties to negotiate and execute a "Supplemental Hire Purchase Offer Letter" but when the respondent therein did not like the terms of that letter, it went back to court and asked for an injunction to stop repossession until further negotiations were completed. The court held that the mediation agreement was adopted as a judgment and one cannot go back to court to force more negotiations or to change the terms the parties already agreed to. In any case, the court was explicit at para. 30 that it could “…intervene in post-judgment applications relating to the execution of the terms of the said Mediation Settlement Agreement”. Therefore, a reading of the full judgment shows that the court's problem was not with any injunction but an injunction that sought to re-open negotiations and change agreed terms. The Plaintiff is asking the court to stop the Bank from executing the judgment before the 60-day stay period expired which is to me a post-judgment application relating to execution. I reject this objection by the Bank as well.
Injunction
10. Turning to the merits of the application, I do not think it is in dispute that for the Plaintiff to obtain the injunction, it must demonstrate that it has a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt show that the balance of convenience is in its favour (See Giella v Cassman Brown & Co., Ltd. [1973] E.A. 358). In Nguruman Limited v Jan Bonde Nielsen& 2 others [2013] KECA 347 (KLR), the Court of Appeal reiterated these conditions and further clarified that they are to be applied as separate, distinct and logical hurdles which an applicant is expected to surmount sequentially. This means that if the applicant does not establish a prima facie case, then irreparable injury and balance of convenience do not require consideration. On the other hand, if a prima facie case is established, then the court will consider the other conditions.
11. As to what constitutes a prima facie case, the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) explained that it is, “….a case in 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 to call for an explanation or rebuttal from the latter.”
12. The Plaintiff’s case is that the dispute began over a loan facility of Kshs. 35,000,000.00 taken from the Bank in 2015. The matter was referred to mediation, and on 17 th June 2025, the court adopted the parties’ mediation agreement as a judgment. That under the Agreement, the Plaintiff was to pay the Bank Kshs. 16,000,000.00 within 60 days and that the court granted a 60-day stay of execution from the date of judgment, giving the Plaintiff time to pay. That the Interested Party (“the Auctioneer”) served a statutory notice of sale on 4 th August 2025 which was only 46 days after the judgment, before the 60-day stay expired and that the amount demanded in the notice, Kshs. 19,401,960.41 is higher than the agreed judgment sum of Kshs. 16,000,000.00 and further, the Plaintiff obtained a professional valuation showing the property is worth Kshs. 43,000,000.00
13. The Plaintiff contends that the Auctioneer's valuation is much lower returning an open market value of Kshs. 24,000,000.00 and forced sale value of Kshs. 18,000,000.00 compared to the Bank's own 2015 valuation of over Kshs. 35,000,000.00. It states that selling the property so quickly at a low price would be a great injustice and would thwart the Plaintiff's efforts to find a buyer and pay the debt as agreed.
14. In its response, the Bank depones that the 60 days for the Plaintiff to pay the Kshs. 16,000,000.00 started on 19 th May 2025 on the date of signing the Agreement and that the 60 days expired on 19 th July 2025 and the Plaintiff still had not paid. That when the Plaintiff failed to pay, the Agreement lapsed automatically, and the Bank became entitled to sell the suit property and the statutory notices for sale were issued and served after this default.
15. The Bank avers that it followed the correct process by issuing all required statutory notices; that is a 90-Day Statutory Demand Notice dated 25 th February 2025, a 40-Day Notification of Sale dated 29 th May 2025 and the 45-day redemption notice from the Auctioneer was served on the Plaintiff. That the Bank obtained a professional valuation from Nwest Valuers Limited dated 31 st July 2025 and this valuation is in compliance with all applicable standards and that the Plaintiff's claim that the property is undervalued is simply speculation and an attempt to mislead the court. Further, that this would also be a new issue on a concluded matter.
16. The Bank states that the Plaintiff's loan is still in huge arrears and as of 14 th November 2025, the amount due was Kshs. 19,834,460.41, which continues to accrue interest and a chargor cannot stop a bank from selling a charged property unless they offer to pay the full amount demanded, which the Plaintiff has not done. For these reasons, the Bank urges the court to dismiss the Plaintiff's application with costs.
17. The determination of this issue turns to the interpretation of the Mediation Agreement and the court’s order. It is not in dispute that Clause 4 of the Agreement states that the 60 days run from "…the date of signing this Settlement Agreement” . It is also not disputed that this court adopted the agreement as a judgment of the court on 17 th June 2025 and the court granted the Plaintiff a stay of execution for 60 days. The Bank is correct in stating that once the parties signed the Agreement, the 60-day clock started running as a contractual deadline. However, once the judgment was adopted as a decree of the court and granted a stay of execution for 60 days, the 60-day stay becomes a court order and the Bank could not sell the suit property during the 60-day stay without violating a court order. As such, the court-ordered 60-day stay begun to run from the date of adoption on 17 th June 2025 because the stay was now a court order, not a contractual term. The Bank's argument appears to confuse contractual bindingness with court decree enforcement and yet the two are not the same.
18. I am therefore in agreement with the Plaintiff's position that the 60-day stay begun running from the date of court adoption. The Bank itself treated the mediation agreement as not yet binding when it issued the 40-day Notification of Sale on 29 th May 2025 because that was before the court adopted the agreement as a judgment on 17 th June 2025. If the Bank believed the 60 days started on 19 th May 2025, why did it issue a notice on 29 th May 2025 only 10 days into the 60-day period? This suggests the Bank knew the court's adoption of the Agreement was still pending.
19. Ideally, the Plaintiff has made out a prima facie case. However, even if the court agrees with the Plaintiff that the 60 days started on 17 th June 2025, that deadline was 17 th August 2025. We are in June 2026, which is approximately 10 months later and the Plaintiff has not paid the Kshs. 16,000,000.00. The Plaintiff's own valuation report suggests the property has more than enough value to cover the debt so why has it not sold the property privately and paid the Bank? The Plaintiff’s answer that the Bank's sale process scared away buyers cannot be an excuse that lasts forever. At some point, the Plaintiff must either pay or accept the consequences and the court cannot grant an injunction indefinitely when the underlying debt remains unpaid and the agreed time, whichever date either party picks, has long passed.
20. It is clear that the Plaintiff faces a serious problem of mootness or delay. The Plaintiff has had approximately 10 months since then to pay the Kshs. 16,000,000.00, obtain a buyer and complete a private sale or seek alternative financing. The Plaintiff has done none of these things. Even if I am to assume that the suit property valuation is in contention, any loss is quantifiable in damages and the Plaintiff can always seek compensation in a separate suit later on. The balance of convenience tilts in favour of the Bank at this point as the debt continues to grow, the Plaintiff has had 10 months to pay and the Bank is entitled to recover its money.
Conclusion and Disposition
21. As this juncture, the only action that affords the Plaintiff’s application dated 9 th October 2025 is dismissal and I thus dismiss it but with no order as to costs.
DATED SIGNED AND DELIVERED virtually this 31 st DAY OF JUNE 2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. N/A for the Applicant
2. Ms. Mutonyi for the Respondent
3. Amos- Court Assistant
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