Background and Introduction
1. For determination is the application dated 28th May 2025, which seeks injunctive relief pending the hearing and determination of the suit filed by the plaintiffs, who are the applicants, against the respondents.
2. I have carefully considered the parties’ pleadings and submissions. The main issue for determination is whether the applicants have met the threshold for granting the injunction orders they seek. To succeed, the applicants must satisfy the conditions established in Giella v. Cassman Brown & Co., Ltd. [1973] E.A. 358 . These conditions require the them to demonstrate a prima facie case with a probability of success, show that they would suffer irreparable harm that could not be adequately compensated by damages, and, if the court is in doubt, have the application determined on the balance of convenience.
3. These conditions are are applied as distinct, sequential hurdles which the applicant is expected to surmount sequentially. This means that if the applicant fails to establish a prima facie case, there is no need to consider irreparable harm or the balance of convenience (see Nguruman Limited v Jan Bonde Nielsen& 2 others [2013] KECA 347 (KLR) ).
4. 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 as follows:
“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 from the latter”.
5. Turning to the dispute at hand, I note with considerable concern that the applicants have filed no fewer than eight (8) applications in relation to this matter. A common thread running through these applications is the repeated pursuit of injunctive relief. The Bank has annexed the relevant decisions in its documents in response to the application. In each instance, the Court has declined to grant the orders sought. This pattern of litigation, characterized by persistent re-litigation of issues previously adjudicated, amounts to an abuse of the court process and cannot be countenanced. The judicial process must not be reduced to a tool for forum shopping or delaying the course of justice.
6. That said, in the interest of finality and for the avoidance of doubt, I shall proceed to determine the issues raised in the present application on their merits.
7. On the issue of whether a prima facie case has been established, I note that the applicants do not dispute having been granted facilities by the Bank. The crux of their grievance lies in the allegation that the Bank failed to serve upon them the requisite statutory notices prior to the auction scheduled for 4th June 2025.
8. I have carefully examined the evidence annexed to the Bank’s Replying Affidavit sworn on 3rd June 2025. Notably, at pages 103 to 116 are copies of the statutory notices in question, along with certificates of postage and affidavits of service confirming dispatch and service upon the applicants. It is not in contention that the postal address used by the Bank was indeed the applicants’ official address. In the absence of any credible denial or rebuttal by the applicants regarding receipt or service, I am satisfied that the requisite statutory notices were duly served.
9. As to the typographical error in one of the notices concerning the Land Reference Number, I am of the view that this does not invalidate the notice. The error is minor and does not occasion any prejudice, especially in light of the parties’ ongoing correspondence and mutual understanding of the specific loan facility and the property charged. The applicants have at all material times been aware of the transaction and their default under it. I further observe from the record that this is not the applicants’ first attempt to halt the sale of the suit property.
10. With respect to the prayer for taking of accounts, I note that the Bank has furnished the relevant loan statements. In terms of evidentiary value, Section 176 of the Evidence Act is instructive. It provides as follows:
"Subject to the provisions of this Chapter of this Act, a copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters, transactions and accounts therein recorded."
11. The applicants have not raised any concrete challenge to the accuracy or authenticity of the statements provided. In the absence of any dispute as to their veracity, the prayer for the taking of accounts lacks merit and is therefore rendered moot.
12. The last issue is with respect to the alleged discrepancies in the valuation of the suit property. The Bank has presented its valuation report, which is indicative of the market value and forced sale value of the suit property (see page 140), as required under Section 97 of the Land Act. According to the applicant, the forced sale value of Kshs. 225,000,000/= is a gross under-valuation of the suit property.
13. It is now settled law that differences in valuation, by themselves, are not a sufficient basis to restrain a chargee from exercising its statutory power of sale. The adequacy or inadequacy of a valuation report, or mere variation in property value, is a matter that can be remedied through an award of damages. In this regard, I adopt the reasoning in Palmy Company Limited v Consolidated Bank of Kenya Ltd [2014] eKLR , where the Court held that:
“The court needs cogent evidence and material in order to say that prima facie, there has been an undervaluation of the suit property which is an infringement of section 97(2) of the Land Act by the Defendant as to entitle the court to call for an explanation or rebuttal from the Defendant.”
14. I have found no cogent evidence in this instance that would entitle the applicants to an order stopping the exercise of the Bank’s statutory power of sale.
15. Further, I find no merit in the applicant’s contention that the Bank ought to have accepted a private treaty. The statutory power of sale vests the mortgagee with the discretion to choose the mode of realization. The Bank is under no obligation to accede to a private sale or negotiate with the applicant outside the strict terms of the charge, particularly in the face of continuing default.
16. Having evaluated the evidence, I find that the applicants have failed to establish a prima facie case with a probability of success. Their claim for an injunction therefore fails at this first hurdle, consistent with the dicta in Nguruman Limited v Jan Bonde Nielsen & 2 Others (supra).
Disposition
17. Accordingly, the application dated 28th May 2025 is dismissed with costs.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 3RD DAY OF JUNE 2025.
F. MUGAMBI
JUDGE
1. For determination is the application dated 28th May 2025, which seeks injunctive relief pending the hearing and determination of the suit filed by the plaintiffs, who are the applicants, against the respondents.
2. I have carefully considered the parties’ pleadings and submissions. The main issue for determination is whether the applicants have met the threshold for granting the injunction orders they seek. To succeed, the applicants must satisfy the conditions established in Giella v. Cassman Brown & Co., Ltd. [1973] E.A. 358 . These conditions require the them to demonstrate a prima facie case with a probability of success, show that they would suffer irreparable harm that could not be adequately compensated by damages, and, if the court is in doubt, have the application determined on the balance of convenience.
3. These conditions are are applied as distinct, sequential hurdles which the applicant is expected to surmount sequentially. This means that if the applicant fails to establish a prima facie case, there is no need to consider irreparable harm or the balance of convenience (see Nguruman Limited v Jan Bonde Nielsen& 2 others [2013] KECA 347 (KLR) ).
4. 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 as follows:
“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 from the latter”.
5. Turning to the dispute at hand, I note with considerable concern that the applicants have filed no fewer than eight (8) applications in relation to this matter. A common thread running through these applications is the repeated pursuit of injunctive relief. The Bank has annexed the relevant decisions in its documents in response to the application. In each instance, the Court has declined to grant the orders sought. This pattern of litigation, characterized by persistent re-litigation of issues previously adjudicated, amounts to an abuse of the court process and cannot be countenanced. The judicial process must not be reduced to a tool for forum shopping or delaying the course of justice.
6. That said, in the interest of finality and for the avoidance of doubt, I shall proceed to determine the issues raised in the present application on their merits.
7. On the issue of whether a prima facie case has been established, I note that the applicants do not dispute having been granted facilities by the Bank. The crux of their grievance lies in the allegation that the Bank failed to serve upon them the requisite statutory notices prior to the auction scheduled for 4th June 2025.
8. I have carefully examined the evidence annexed to the Bank’s Replying Affidavit sworn on 3rd June 2025. Notably, at pages 103 to 116 are copies of the statutory notices in question, along with certificates of postage and affidavits of service confirming dispatch and service upon the applicants. It is not in contention that the postal address used by the Bank was indeed the applicants’ official address. In the absence of any credible denial or rebuttal by the applicants regarding receipt or service, I am satisfied that the requisite statutory notices were duly served.
9. As to the typographical error in one of the notices concerning the Land Reference Number, I am of the view that this does not invalidate the notice. The error is minor and does not occasion any prejudice, especially in light of the parties’ ongoing correspondence and mutual understanding of the specific loan facility and the property charged. The applicants have at all material times been aware of the transaction and their default under it. I further observe from the record that this is not the applicants’ first attempt to halt the sale of the suit property.
10. With respect to the prayer for taking of accounts, I note that the Bank has furnished the relevant loan statements. In terms of evidentiary value, Section 176 of the Evidence Act is instructive. It provides as follows:
"Subject to the provisions of this Chapter of this Act, a copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters, transactions and accounts therein recorded."
11. The applicants have not raised any concrete challenge to the accuracy or authenticity of the statements provided. In the absence of any dispute as to their veracity, the prayer for the taking of accounts lacks merit and is therefore rendered moot.
12. The last issue is with respect to the alleged discrepancies in the valuation of the suit property. The Bank has presented its valuation report, which is indicative of the market value and forced sale value of the suit property (see page 140), as required under Section 97 of the Land Act. According to the applicant, the forced sale value of Kshs. 225,000,000/= is a gross under-valuation of the suit property.
13. It is now settled law that differences in valuation, by themselves, are not a sufficient basis to restrain a chargee from exercising its statutory power of sale. The adequacy or inadequacy of a valuation report, or mere variation in property value, is a matter that can be remedied through an award of damages. In this regard, I adopt the reasoning in Palmy Company Limited v Consolidated Bank of Kenya Ltd [2014] eKLR , where the Court held that:
“The court needs cogent evidence and material in order to say that prima facie, there has been an undervaluation of the suit property which is an infringement of section 97(2) of the Land Act by the Defendant as to entitle the court to call for an explanation or rebuttal from the Defendant.”
14. I have found no cogent evidence in this instance that would entitle the applicants to an order stopping the exercise of the Bank’s statutory power of sale.
15. Further, I find no merit in the applicant’s contention that the Bank ought to have accepted a private treaty. The statutory power of sale vests the mortgagee with the discretion to choose the mode of realization. The Bank is under no obligation to accede to a private sale or negotiate with the applicant outside the strict terms of the charge, particularly in the face of continuing default.
16. Having evaluated the evidence, I find that the applicants have failed to establish a prima facie case with a probability of success. Their claim for an injunction therefore fails at this first hurdle, consistent with the dicta in Nguruman Limited v Jan Bonde Nielsen & 2 Others (supra).
Disposition
17. Accordingly, the application dated 28th May 2025 is dismissed with costs.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 3RD DAY OF JUNE 2025.
F. MUGAMBI
JUDGE