Background and Introduction
1. This Ruling determines the application dated 18th February 2026 by which the Plaintiff seeks to restrain the 1st Defendant from exercising its statutory power of sale over the property Title Number Nairobi/Block 183/333 (the suit property) pending the hearing and determination of this suit. The application is supported by the affidavit sworn by the Plaintiff on even date.
2. The Plaintiff's case is that the 1st Defendant, acting as chargee under its statutory power of sale, sold the suit property at a public auction held on 31st October 2025 to the 2nd Defendant for Kshs. 26,250,000/-. She contends that this sale subsequently fell through, as the 2nd Defendant failed to pay the balance of the purchase price within the stipulated 90-day period, and that the sale therefore stands nullified under Clause 6 of the Auction Conditions. On this basis, she maintains that the property has never been transferred and remains registered in her name.
3. The Plaintiff further argues that the 1st Defendant's statutory duty under Section 97(1) of the Land Act, 2012 which is to secure the best price reasonably obtainable, was never discharged, given that the auction failed, and that this duty has effectively been revived. She points to Section 98(1)(d) of the Land Act which permits a sale by private treaty, which she contends is now the fairer and more appropriate route to realizing the property's value. She also faults the 1st Defendant for never having considered or offered her the option of leasing the property under Section 93 of the Act before proceeding to sale, which she says renders the entire recovery process flawed.
4. She raises the further concern that the 1st Defendant is likely to press ahead with a fresh public auction, conducted hastily and potentially at an undervalue, without considering a private treaty sale, a course she says would cause her irreparable harm. She points out that she and her family remain in occupation of the suit property as their home, and submits that the balance of convenience favours maintaining the status quo to allow a private sale, which would both protect her proprietary interest and satisfy the 1st Defendant's debt. In her view, she has demonstrated a prima facie case with a probability of success, and damages would not adequately compensate her should the property be lost through what she characterizes as an unlawful or procedurally defective sale.
5. The application is opposed. The 1st Defendant filed a Replying Affidavit sworn on 3rd March 2026 by Christine Wahome, its Senior Legal Counsel, Retail.
The Preliminary Objection
6. The 1st Defendant raises two threshold objections. First, that the application is res judicata, given the earlier decision in HCCOMM E749 of 2024, Njoki Mwangi and Kijani Medical Limited V NCBA Bank Kenya PLC, in which a similar application was dismissed. Second, that the present suit offends the sub judice rule, since the question of the sale of the suit property is directly and substantially in issue in that earlier suit, which remains pending. I must dispose of these preliminary points before turning to the merits.
7. On sub judice, the 1st Defendant has exhibited the Plaint filed in HCCOMM E749 of 2024. It is apparent from its face that the suit was brought by the borrower, Kijani Medical Limited, together with the 2nd plaintiff named there, who is the Plaintiff in these proceedings, arising from the same lending relationship with the Defendant bank and concerning the same suit property. That the present proceedings have additionally enjoined the 2nd Defendant here does not change that underlying reality. This is precisely the kind of duplication and piecemeal litigation the sub judice rule exists to prevent, and a party cannot sidestep the rule simply by adding or substituting parties.
8. Given that the substratum of both disputes is the same, and that the earlier suit remains pending before a court of competent jurisdiction, I find that the present suit is sub judice. Notably, one of the substantive prayers in the Plaint in HCCOMM E749 of 2024 is for a permanent injunction restraining the 1st Defendant from selling, advertising, disposing of, or otherwise interfering with the Plaintiff's ownership and possession of the suit property, the very relief sought in the present application.
9. Turning to res judicata, I have had regard to this Court's earlier Ruling in HCCOMM E749 of 2024, in which the Court found as follows:
“Having failed to establish the threshold under Giella V Cassman Brown, the application dated 9th December 2024 lacks merit. It is dismissed with costs. The interim orders granted earlier are hereby discharged.”
10. The Plaintiff, in effect, seeks through this application to re-litigate a matter that has already been determined in those earlier proceedings. I find that the doctrine of res judicata applies to bar the present application on that issue.
11. Even if I were to take a different view, on the basis that the involvement of the 2nd Defendant, as a third-party purchaser, was not a matter previously before the Court, which I do just for the sake of finality, I would still not be persuaded that the Plaintiff has made out a prima facie case warranting injunctive relief. The correspondence on record shows that the 1st Defendant had already extended a discount on the outstanding facility, conditional upon settlement on terms it proposed, and had even permitted the Plaintiff the opportunity to pursue a private treaty sale. The Plaintiff did neither.
12. It is not in dispute that the auction took place on 31st October 2025, or that the 2nd Defendant paid a deposit of 10% of the purchase price. It is equally clear that the 1st Defendant granted the 2nd Defendant a 45-day extension beyond the 90 days stipulated under the Conditions of Sale to settle the balance. Even taking the Plaintiff's case at its highest, that the auction ultimately aborted, this would not, without more, justify the grant of an injunction. The existence of the loan and the fact of default are not disputed. Any loss occasioned by an aborted sale, and by a further auction should one become necessary, is quantifiable and compensable in damages.
13. I reiterate what I held in HCCOMM E749 of 2024:
“The balance of convenience tilts in favour of the Bank, who has complied with statutory requirements and is seeking to realize a debt admittedly in default. Granting an injunction in these circumstances would only serve to defeat the contractual and statutory rights of the chargee. It would also mean allowing the debt to escalate which eventually may be outstripped by the value of the security.”
Disposition
14. For the foregoing reasons, the application dated 18th February 2026 is dismissed, with costs to the 1st Defendant. Having found that this suit is sub judice, it is hereby stayed pending the hearing and final determination of HCCOMM E749 of 2024.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF SEPTEMBER 2026.
F. MUGAMBI
JUDGE
Delivered in presence of:
Omuyoma for plaintiff
Ms Mutonyi for 1st defendant
Court Assistants: Lillian & Gloria
1. This Ruling determines the application dated 18th February 2026 by which the Plaintiff seeks to restrain the 1st Defendant from exercising its statutory power of sale over the property Title Number Nairobi/Block 183/333 (the suit property) pending the hearing and determination of this suit. The application is supported by the affidavit sworn by the Plaintiff on even date.
2. The Plaintiff's case is that the 1st Defendant, acting as chargee under its statutory power of sale, sold the suit property at a public auction held on 31st October 2025 to the 2nd Defendant for Kshs. 26,250,000/-. She contends that this sale subsequently fell through, as the 2nd Defendant failed to pay the balance of the purchase price within the stipulated 90-day period, and that the sale therefore stands nullified under Clause 6 of the Auction Conditions. On this basis, she maintains that the property has never been transferred and remains registered in her name.
3. The Plaintiff further argues that the 1st Defendant's statutory duty under Section 97(1) of the Land Act, 2012 which is to secure the best price reasonably obtainable, was never discharged, given that the auction failed, and that this duty has effectively been revived. She points to Section 98(1)(d) of the Land Act which permits a sale by private treaty, which she contends is now the fairer and more appropriate route to realizing the property's value. She also faults the 1st Defendant for never having considered or offered her the option of leasing the property under Section 93 of the Act before proceeding to sale, which she says renders the entire recovery process flawed.
4. She raises the further concern that the 1st Defendant is likely to press ahead with a fresh public auction, conducted hastily and potentially at an undervalue, without considering a private treaty sale, a course she says would cause her irreparable harm. She points out that she and her family remain in occupation of the suit property as their home, and submits that the balance of convenience favours maintaining the status quo to allow a private sale, which would both protect her proprietary interest and satisfy the 1st Defendant's debt. In her view, she has demonstrated a prima facie case with a probability of success, and damages would not adequately compensate her should the property be lost through what she characterizes as an unlawful or procedurally defective sale.
5. The application is opposed. The 1st Defendant filed a Replying Affidavit sworn on 3rd March 2026 by Christine Wahome, its Senior Legal Counsel, Retail.
The Preliminary Objection
6. The 1st Defendant raises two threshold objections. First, that the application is res judicata, given the earlier decision in HCCOMM E749 of 2024, Njoki Mwangi and Kijani Medical Limited V NCBA Bank Kenya PLC, in which a similar application was dismissed. Second, that the present suit offends the sub judice rule, since the question of the sale of the suit property is directly and substantially in issue in that earlier suit, which remains pending. I must dispose of these preliminary points before turning to the merits.
7. On sub judice, the 1st Defendant has exhibited the Plaint filed in HCCOMM E749 of 2024. It is apparent from its face that the suit was brought by the borrower, Kijani Medical Limited, together with the 2nd plaintiff named there, who is the Plaintiff in these proceedings, arising from the same lending relationship with the Defendant bank and concerning the same suit property. That the present proceedings have additionally enjoined the 2nd Defendant here does not change that underlying reality. This is precisely the kind of duplication and piecemeal litigation the sub judice rule exists to prevent, and a party cannot sidestep the rule simply by adding or substituting parties.
8. Given that the substratum of both disputes is the same, and that the earlier suit remains pending before a court of competent jurisdiction, I find that the present suit is sub judice. Notably, one of the substantive prayers in the Plaint in HCCOMM E749 of 2024 is for a permanent injunction restraining the 1st Defendant from selling, advertising, disposing of, or otherwise interfering with the Plaintiff's ownership and possession of the suit property, the very relief sought in the present application.
9. Turning to res judicata, I have had regard to this Court's earlier Ruling in HCCOMM E749 of 2024, in which the Court found as follows:
“Having failed to establish the threshold under Giella V Cassman Brown, the application dated 9th December 2024 lacks merit. It is dismissed with costs. The interim orders granted earlier are hereby discharged.”
10. The Plaintiff, in effect, seeks through this application to re-litigate a matter that has already been determined in those earlier proceedings. I find that the doctrine of res judicata applies to bar the present application on that issue.
11. Even if I were to take a different view, on the basis that the involvement of the 2nd Defendant, as a third-party purchaser, was not a matter previously before the Court, which I do just for the sake of finality, I would still not be persuaded that the Plaintiff has made out a prima facie case warranting injunctive relief. The correspondence on record shows that the 1st Defendant had already extended a discount on the outstanding facility, conditional upon settlement on terms it proposed, and had even permitted the Plaintiff the opportunity to pursue a private treaty sale. The Plaintiff did neither.
12. It is not in dispute that the auction took place on 31st October 2025, or that the 2nd Defendant paid a deposit of 10% of the purchase price. It is equally clear that the 1st Defendant granted the 2nd Defendant a 45-day extension beyond the 90 days stipulated under the Conditions of Sale to settle the balance. Even taking the Plaintiff's case at its highest, that the auction ultimately aborted, this would not, without more, justify the grant of an injunction. The existence of the loan and the fact of default are not disputed. Any loss occasioned by an aborted sale, and by a further auction should one become necessary, is quantifiable and compensable in damages.
13. I reiterate what I held in HCCOMM E749 of 2024:
“The balance of convenience tilts in favour of the Bank, who has complied with statutory requirements and is seeking to realize a debt admittedly in default. Granting an injunction in these circumstances would only serve to defeat the contractual and statutory rights of the chargee. It would also mean allowing the debt to escalate which eventually may be outstripped by the value of the security.”
Disposition
14. For the foregoing reasons, the application dated 18th February 2026 is dismissed, with costs to the 1st Defendant. Having found that this suit is sub judice, it is hereby stayed pending the hearing and final determination of HCCOMM E749 of 2024.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF SEPTEMBER 2026.
F. MUGAMBI
JUDGE
Delivered in presence of:
Omuyoma for plaintiff
Ms Mutonyi for 1st defendant
Court Assistants: Lillian & Gloria