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1. I have considered the Notice of Motion Application dated 3 July 2025 together with affidavit in support sworn on even date and the Replying Affidavit sworn on 18 July 2025 together with the submission of the parties and the applicable law.
2. The Applicant has admitted that the subject property was charged. The letter of offer is dated 8th May 2019 and corrigendum dated 31 May 2019 are annexed and found at Exhibit KK1.
3. Further, the charge instrument is dated 31st May 2019. The same is not in dispute and is annexed as Exhibit KK2.
4. The Applicant has further admitted that the debt was secured by way personal guarantee and indemnity and executed by corporate guarantee. The same is found at Exhibit KK3.
5. The record shows that the debt remains due to the bank and that the Applicant has defaulted on several occasions leading to restructure of the facility on three occasions over a period of five years. The debt of approximately Euros 3, 178,698 remains due to the Bank.
6. Nonetheless, the Applicant in support of its Application argued that the intended auction is being carried out in bad faith. The Applicant submitted that the bad faith is based on the fact that it was denied the opportunity to restructure on terms that were agreeable to it. It pointed out that 600,00 euros have been paid thus far. It further pointed out that it has sought a letter of credit, which was not acceptable to the respondent but would have allowed it to pay off the loan.
7. The respondent on the other hand contended that the parties are governed by contractual agreements and that as such there can be no bad faith. Further, it pointed out that in any event, several restructuring attempts were made, and default persisted. I note that this is the correct position and that evidence of the same is on the record. I therefore move to the applicable law.
8. As regards the relevant statutory notices. I note from the Replying Affidavit and exhibits that the 90 days Statutory Notice was served on 16 October 2024 the same was sent by registered post. The same is not disputed and is the mode of service indicated in the charge document. The same is annexed as Exhibit KK7.
9. Further, I note that the 40 -day Notice to Sell was issued on 16 January 2025 again by registered post. The same is not disputed. The same is annexed at Exhibit KK8
10. Finally, the 45 days’ Notice to Redeem under the Auctioneers rules is dated on 27th February 2025 by registered post. There is a certificate of service on the record. The same is not disputed and is annexed as Exhibit KK10.
11. I am satisfied in light of the above that the relevant statutory notices were duly served on the Applicant.
12. Finally, I note that a valuation of the subject property was carried out on 20th June 2025. This is within the period of one year of the intended sale of the property. No dispute has been raised in relation to the valuation. The same is annexed at Exhibit KK9.
13. Accordingly, the Applicant has not met the threshold for a grant of injunction as set out in Giella v Cassman Brown [1973] EA 358, namely:
a. Establish his case only at a prima facie level,
b. Demonstrate irreparable injury that cannot be compensated by way of damages if a temporary injunction is not granted, and
c. Ally any doubts as to (b) by showing that the balance of convenience is in his favour.
14. In particular, I am satisfied that the Applicant has failed to make out a prima facie case under the first limb, in accordance with Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR , namely “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.”
15. 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. Having failed to pass the first hurdle, the Applicant may not leap frog to the next and that brings the matter to an end.
16. Based on the reasons as set out above, I find that the Application is without merit. The same is accordingly dismissed with costs.
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1. I have considered the Notice of Motion Application dated 3 July 2025 together with affidavit in support sworn on even date and the Replying Affidavit sworn on 18 July 2025 together with the submission of the parties and the applicable law.
2. The Applicant has admitted that the subject property was charged. The letter of offer is dated 8th May 2019 and corrigendum dated 31 May 2019 are annexed and found at Exhibit KK1.
3. Further, the charge instrument is dated 31st May 2019. The same is not in dispute and is annexed as Exhibit KK2.
4. The Applicant has further admitted that the debt was secured by way personal guarantee and indemnity and executed by corporate guarantee. The same is found at Exhibit KK3.
5. The record shows that the debt remains due to the bank and that the Applicant has defaulted on several occasions leading to restructure of the facility on three occasions over a period of five years. The debt of approximately Euros 3, 178,698 remains due to the Bank.
6. Nonetheless, the Applicant in support of its Application argued that the intended auction is being carried out in bad faith. The Applicant submitted that the bad faith is based on the fact that it was denied the opportunity to restructure on terms that were agreeable to it. It pointed out that 600,00 euros have been paid thus far. It further pointed out that it has sought a letter of credit, which was not acceptable to the respondent but would have allowed it to pay off the loan.
7. The respondent on the other hand contended that the parties are governed by contractual agreements and that as such there can be no bad faith. Further, it pointed out that in any event, several restructuring attempts were made, and default persisted. I note that this is the correct position and that evidence of the same is on the record. I therefore move to the applicable law.
8. As regards the relevant statutory notices. I note from the Replying Affidavit and exhibits that the 90 days Statutory Notice was served on 16 October 2024 the same was sent by registered post. The same is not disputed and is the mode of service indicated in the charge document. The same is annexed as Exhibit KK7.
9. Further, I note that the 40 -day Notice to Sell was issued on 16 January 2025 again by registered post. The same is not disputed. The same is annexed at Exhibit KK8
10. Finally, the 45 days’ Notice to Redeem under the Auctioneers rules is dated on 27th February 2025 by registered post. There is a certificate of service on the record. The same is not disputed and is annexed as Exhibit KK10.
11. I am satisfied in light of the above that the relevant statutory notices were duly served on the Applicant.
12. Finally, I note that a valuation of the subject property was carried out on 20th June 2025. This is within the period of one year of the intended sale of the property. No dispute has been raised in relation to the valuation. The same is annexed at Exhibit KK9.
13. Accordingly, the Applicant has not met the threshold for a grant of injunction as set out in Giella v Cassman Brown [1973] EA 358, namely:
a. Establish his case only at a prima facie level,
b. Demonstrate irreparable injury that cannot be compensated by way of damages if a temporary injunction is not granted, and
c. Ally any doubts as to (b) by showing that the balance of convenience is in his favour.
14. In particular, I am satisfied that the Applicant has failed to make out a prima facie case under the first limb, in accordance with Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR , namely “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.”
15. 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. Having failed to pass the first hurdle, the Applicant may not leap frog to the next and that brings the matter to an end.
16. Based on the reasons as set out above, I find that the Application is without merit. The same is accordingly dismissed with costs.
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