REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
HIGH COURT CIVIL CASE NO. E003 OF 2025
PETER ADAM OGALO…………….................................…PLAINITFF/APPLICANT
VERSUS
ABSA BANK KENYA PLC.............................................1 ST DEFENDANT/RESPONDENT
TREVO AUCTIONEERS…………………......................2 ND DEFENDANT/RESPONDENT
RULING
1. The plaintiff’s /applicant’s Notice of Motion dated 9 th July 2025 seeks an order of temporary injunction to restrain the defendants/respondents acting jointly or severally either by themselves or through their servants, agents, employees or any one authorized to act for them from selling, offering for sale, leasing, taking occupation of and or otherwise interfering with the applicant’s title, right and interest over property Title Nos. Kwale/Diani /Complex/888 and Kwale/Diani/Complex/889 pending the hearing and determination of the suit.
2. The application is brought under Article 40(1) of the Constitution, sections 68, 69 & 90 of the Land Registration Act (Cap. 300) Laws of Kenya, sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act (Cap. 21) Laws of Kenya; Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010.
3. The grounds in support of the application are set out on the face of the application and expounded in the supporting affidavit sworn on 9 th July 2026 by Peter Adam Ogalo, the plaintiff/applicant (the borrower). It emerges from the application that the applicant’s properties, land parcel title No. Kwale/Diani Complex/888 and Kwale/Diani Complex/889 are under threat of sale by the 1 st respondent through the 2 nd respondent who has issued the applicant with a Notification of Sale of the subject properties by way of public auction on 17 th July 2025. The threatened sale is pursuant to the 1 st respondent’s exercise of its statutory power of sale upon a charge registered upon the said parcels of land as security for a mortgage facility of KShs 25,600,000/= from the 1 st respondent. It is the applicant’s contention that the 1 st respondent’s intended sale is unlawful for reasons that the interest rates and monthly installments were increased without notice contrary to the letter of offer and that the 1 st respondent has refused to disclose the basis of the exorbitant arrears it has added on the mortgage facility.
4. It is the applicant’s case that he obtained a mortgage facility for Kshs 25,600,000/= only from the 1 st respondent vide a letter of offer dated 26 th July 2022. The said loan was repayable in 180 monthly installments of Kshs 323,902/= at an interest rate of 13.79% per annum until payment in full. A charge was subsequently created over the suit properties as security for the loan advanced. It was a term of the loan in the letter of offer that the lender shall give one month’s notice of any intention to revise the rate of interest. As at the time of making this application, the 1 st respondent had repaid the loan for a period of 3 years in liquidation of the loan. The copies of the titles and the letter of offer are annexed to the supporting affidavit.
5. The applicant contends that after he repaid the mortgage facility for 3 years the 1 st respondent unilaterally increased the monthly repayments and interest rates which increased the arrears exorbitantly and in turn the 1 st respondent begun issuing contrary arrears in the loan statements. Despite numerous enquiries the 1 st respondent failed to explain the exorbitant arrears which have now accumulated to Kshs. 28,173, 315,80/= devoid of any notice or justification causing the applicant to temporarily halt the monthly installments. A sample of the loan statement has been annexed to the supporting affidavit.
6. The 1 st respondent instructed the 2 nd respondent, Trevor Auctioneers to issue the applicant with a 45-day notice of sale of the suit property and the same was fixed for public auction on 17 th July 2025. The notification of sale is annexed to the supporting affidavit.
7. According to the applicant, the intended public auction is irregular and illegal as it lacks proper, procedural legal notices by the respondents herein. The applicant thus deposes that failure to issue the restraining order the suit property shall be sold by way of public auction prejudicing his right to property and he shall suffer irreparable loss should the property be transferred to a third party.
8. On the 9 th July 2025 the court ordered that the respondents be served and file their responses within 10 days. Leave to file a supplementary affidavit was granted to be filed within 3 days of service of the responses. Further the court issued a temporary injunction against the respondents, acting jointly or through any other person authorized to act for them or on their behalf from selling, offering for sale, leasing, taking occupation of, property No. Kwale/Diani Complex/888 and Kwale/Diani Complex/889 pending hearing and determination of the suit on condition that the applicant deposits with the 1 st respondent in to his mortgage account an amount of Kshs. 1,300,000/= within the next 10 days which is equivalent to 4 monthly installments for the mortgage facility.
9. The application is opposed by the 1 st respondent through a replying affidavit sworn on 17 th July 2025 by Samuel Njuguna, legal officer of the 1 st respondent who deposes that the application is devoid of merit, lodged in bad faith and ought to be dismissed with costs.
10. He has set out the case for the 1 st respondent against the applicant being that the applicant was advanced a financial accommodation of Kshs 25,600,000/= that was secured by the registration of the charge over the properties Title Nos. Kwale/Diani/Complex/888 and Kwale/Diani/Complex 889. The applicant defaulted in servicing his loan which necessitated the realization of the securities through the statutory power of sale. The respondent annexed to the replying affidavit the copies of the title deeds confirming the respective charges had been registered against the titles.
11. He deposes that the statutory notice dated 11 th November 2024 was issued as per section 90 of the Land Act. According to the 1 st respondent no written law was violated as the applicant had defaulted in payment up to KShs. 28, 173, 315.80/= and does not deserve the injunctive orders sought. Counsel annexed the statutory notice dated 11 th November 2024 and the loan statement of the applicant.
12. The deponent deposes that the applicant had requested for a restructuring of the loan terms from the 1 st respondent.
13. The deponent further deposes that the applicant had been issued with a 40 days’ notice as required by law and annexed the notice dated 17 th February 2025 from Samuel Gitonga and Associates, advocates for the 1 st respondent. At the point of issuance of the 40 days’ notice the loan arrears were Kshs. 27,392,383.35/= due to the continued default from KShs. 26,349,327.35/= during the issuance of the ninety days’ notice. As at the time of issuing the redemption notice and notice to sale the outstanding loan was KShs. 28, 173, 315.80/=.
14. The 1 st respondent contends that upon the applicant’s failure to comply with the statutory notices the redemption notice was issued by the 2 nd respondent on instructions of the 1 st respondent when the arrears were Kshs. 28, 173,315.80/=.
15. The 1 st respondent deposes that at the ex-parte stage the condition for grant of the order of temporary injunction was that the applicant deposits KShs. 1,300,000/= with the 1 st respondent. However, the same was not deposited and therefore the condition was not complied with and the applicant is not deserving of the equitable relief of temporary injunction and the application be dismissed with costs.
16. Parties disposed of the application by way of written submissions. Learned counsel for the applicant filed written submissions dated 18 th September 2025 whereas learned counsel’s submissions for the 1 st respondent are dated 3 rd November 2025. The 2 nd respondent did not participate in the application.
17. Learned counsel for the applicant refers the court to the cases of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) which reiterates the three pillars for the grant of am order of interlocutory injunction to be a prima facie case with a probability of success, irreparable injury if a temporary injunction is not granted and the balance of convenience if the court is in doubt.
18. Counsel submitted on the three conditions and how the applicant has met the threshold for the grant of the temporary injunctive orders. On prima facie case counsel relied on the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) where it was held that a prima facie case is more than an arguable case. The evidence must show an infringement of a right and the probability of success of the case upon trial. Counsel contended that the applicant has provided the court with documentary evidence to support his case that he was servicing the loan up to a certain point when the 1 st respondent arbitrarily inflated the rate of interest without the consent of the applicant contrary to the terms of the loan agreement thereby increasing the monthly installments payable. Counsel submits that the applicant acknowledges the mortgage and has provided statements on servicing it.
19. On irreparable injury, counsel relied on the case of Nguruman (supra) and argued that the applicant has enjoyed quiet possession from the date he entered in to the mortgage arrangement with the 1 st respondent up until when the 2 nd respondent threatened to auction the applicant’s property. He contends that he has shown that he will suffer irreparable damage if the injunction is not issued in favor of the applicant.
20. On the third limb on balance of convenience counsel relied on the cases of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) and Kenya Elecricity Transmission Company Limited v Kibotu Limited [2019] KEELC 113 (KLR) where the court in defining the balance of convenience held that the convenience caused to the applicant would be greater than that which would be caused to the respondent if an injunction is not granted. Counsel submitted that the applicant will suffer the greatest loss if the interlocutory orders are not granted.
21. The 1 st respondent raised one issue for determination in its submissions on whether the applicant has satisfied the test for the grant of temporary injunction as set out in the case of Giella Vs Cassman Brown and Company Limited (1973) EA 358 which laid out the principles for the grant of an interlocutory injunction which include (1) first, prima facie case with a probability of success (2) applicant must show he will suffer irreparable injury which cannot be adequately compensated by damages (3) if the court is in doubt, it will decide an application on the balance of convenience.
22. On the first condition of prima facie case learned counsel quoted the case law of Mrao Ltd (supra) . Learned counsel submitted that in order for a prima facie to be shown to have been established from the material placed before the court, it should allude to the violation of the applicant’s right by the opposing party. Counsel submitted that the applicant does not have a prima facie case for the reason that the applicant has failed to tender any evidence that he is dutifully servicing the loan as alleged in the application. That for that reason, he has approached the court of equity with unclean hands and is not deserving of the equitable remedy of injunction.
23. Learned counsel submits that the 1 st respondent followed due process in an attempt to realize the charged property in exercise of its power of sale after the applicant failed to service the loan as per the loan agreement.
24. On the second limb of whether the applicant shall suffer irreparable injury that cannot be compensated by an award of damages counsel relied on the cases of Pius Kipchirchir (supra), and the others cited above by the applicant where an irreparable injury was defined to be one that cannot be compensated for in damages. So that where damages recoverable in law is an adequate remedy and the respondent is capable of paying, the temporary injunction order will not issue. Counsel urged the court to take cognizance of the indulgence extended to the applicant by the respondent. Further that the applicant continued to default despite the demand notice, statutory notice, Forty days’ notice and the redemption notice.
25. On the limb of whether the balance of convenience favors the applicant, learned counsel submitted that the applicant has failed to prove the existence of the prima facie case with a probability of success and irreparable injury. He asserts that this limb should fail. Counsel relied on the case of East African Development Bank v Hyundai Motors Kenya Limited [2006] KECA 369 (KLR) where the Court of Appeal held that the court will only consider the balance of convenience where there is doubt. It is the 1 st respondent’s submissions that the pleadings and submissions filed alleviate any doubts.
26. Learned counsel submitted that the applicant has failed to meet the test for the grant of the temporary injunction as set out in the Giella case and urged the court to dismiss the application with costs.
27. I have considered the application and the response thereto by the 1 st respondent as well as the submissions by learned counsels. The main issue for determination in this application is whether the conditions for issuance of temporary injunction have been met by the applicant.
28. The traditional conditions to be met by a party seeking a temporary injunction are set out in the case of Giella v. Cassman Brown Co. Ltd [1973] EA 358 to wit:-
a. Has the applicant established a prima facie case with a probability of success?
b. Will the applicant suffer irreparable injury unless an injunction is issued? and,
c. where there is doubt in the mind of the court the application will be determined depending on where the balance of convenience lies.
29. The Court of Appeal in the case of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) restated the above test as follows:
In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
(a) establish his case only at a prima facie level,
(b) demonstrate irreparable injury if a temporary injunction is not granted, and
(c) allay any doubts as to (b) by showing that the balance of convenience is in his favour.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. 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. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.
It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”
30. The applicant having failed to respond to the facts deposed to by the 1 st respondent in the replying affidavit, the same remain uncontroverted and so have to be taken as the correct position on the matter as was held in the case of Mohamed & Another v. Haidara [1972] E.A. 166 and Kenya Reinsurance Corporation v R. M. Mutiso [2009] KEHC 2203 (KLR) which I agree with.
31. The first test is whether the applicant has established a prima facie case with a probability of success. The guide here is the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) where the Court of Appeal defined a prima facie case as follows;
“...in civil cases, 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 as to call for an explanation or rebuttal from the latter.”
32. The application is based on various grounds set out by the applicant. The first ground is that the mortgage facility of KShs 25,600,000/= was offered through concealment and misrepresentation of facts that the 1 st respondent was licenced to give mortgage in compliance with the law. However, the supporting affidavit does substantiate this assertion by way any particulars of such concealment and misrepresentation of facts or provide any evidence that the 1 st respondent is not licenced to offer mortgage facilities. It is deposed in the supporting affidavit that it was a term of the letter of offer that the lender shall give one-month notice of any intention to revise the rate of interest on the mortgage loan. I have looked at the letter of offer dated 26 th July 2022 and I do not see that provision in clause (vi) on Rate of Interest Payable. In fact, the clause provides that the rate of interest may be varied from time to rime by the bank in its sole discretion.
33. The applicant also complains that after diligently paying the loan facility for three years the 1 st respondent unilaterally increased the monthly repayments and interest rate without notice which steadily increased his arrears exorbitantly. He annexed what he termed a sample copy of loan statement for the period 1 st May 2023 to 27 th April 2024 without indicating why he was not providing the actual loan statement. The 1 st respondent however provided the full loan statement with entries of relevant transactions from 26 th August 2022 to 7 th July 2025. The statements are similar in all the relevant entries provided and so I find that it is one and the same statement. In that statement, it is shown that the applicant properly serviced his loan for the first four months until December 2022. In January 2023, there is charged a penalty interest. Under the terms of the letter of offer, any part of the loan that is in arrears would be charged such default interest rate as advised by the Bank from time to time which was then indicated to be 18% (revisable). Looking at the statement of account, I note that there was default in servicing the loan by not paying the agreed installments on various occasions. Therefore, there is evidence, besides the applicant’s own concession, that he was in default of repayment of the loan. The contention that he had diligently repaid the loan for three years is not supported by the loan statement.
34. It follows that for any installment falling in arrears the bank would charge the default interest rate on that sum. Other than placing a copy of thethe “sample” statement of account before the court, the applicant has not bothered to pinpoint any evidence of unilateral increase of loan interest and repayments by the 1 st respondent without notice to the applicant as alleged.
35. The applicant further deposes that the 1 st respondent denied him a plausible explanation for contradictions in his loan statement but has not provided any evidence such as correspondence or even meetings held over the issue. I therefore find that the contention by the applicant that the intended sale of his charged property by the 1 st respondent is unlawful for reasons that the 1 st respondent is in breach of the terms of the letter of offer for increasing the monthly instalments without notice and has refused to disclose the basis of the irregular and exorbitant arrears added to the mortgage has no basis.
36. The applicant does not dispute the fact that the credit facility is in arrears. The 1 st respondent has produced the statement of account showing that indeed the credit facility is in arrears. It has been held in various cases that a dispute as to the amount owed is not sufficient ground for an injunction to be granted. I am persuaded to follow the statement by the High Court in the case of Palmy Company Limited v Consolidated Bank of Kenya Limited [2014] KEHC 4811 (KLR) that;
“Unless there are other cogent grounds, disputes on the amounts owing or interest charged will not be the sole basis for grant of an injunction against a chargee who is exercising the statutory power of sale of the charged property…”
37. The court in the above case was citing Halsbury’s Laws of England, Vol. 32 (4 th Edition) paragraph 725 where it was stated that:
‘’725. When mortgagee may be restrained from exercising power of sale
The mortgagee will not be restrained from exercising his power of sale because the amount due is in dispute, or because the mortgagor has begun a redemption action, or because the mortgagor objects to the manner in which the sale is being arranged. He will be restrained, however, if the mortgagor pays the amount claimed into court, that is, the amount which the mortgagor claims to be due to him, unless, on the terms of the mortgage, the claim is excessive’’.
38. On its part, the 1 st respondent has provided a statement of account showing show how the arrears have accrued to the amount being claimed as per the statutory notices issued. The fact that the loan is in arrears and is not being serviced is not in contention and is supported by the statement of account.
39. There is no dispute by the applicant that it is in default of repayment of the loan amount. Although the applicant alleged that notices to him as are provided for under the law were not issued, the respondent ably refuted that allegation by producing all the notices issued. The notices issued are in compliance with sections 90 and 96 of the Land Act. The notices were asking the applicant to remedy the default within 3 months by paying the outstanding sum and his right to apply to court for relief. I am satisfied that the notices to the applicant fully complied with section 90(1) of the Land Act which in part provides that:
(1) If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be in default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.
(2) The notice required by subsection (1) shall adequately inform the recipient of the following matters—
(a) the nature and extent of the default by the chargor;
(b) if the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed;
(c) if the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so as to rectify the default and the time, being not less than two months, by the end of which the default must have been rectified;
(d) the consequence that if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of the remedies referred to in this section in accordance with the procedures provided for in this sub-part; and
(e) the right of the chargor in respect of certain remedies to apply to the court for relief against those remedies.
(3) If the chargor does not comply within ninety days after the date of service of the notice under, subsection (1), the chargee may—
(a) sue the chargor for any money due and owing under the charge;
(b) appoint a receiver of the income of the charged land;
(c) lease the charged land, or if the charge is of a lease, sublease the land;
(d) enter into possession of the charged land; or
(e) sell the charged land;
(4) …
40. There is no indication that the applicant remedied the default after the expiry of the 3 months’ (90-days) notice issued under section 90 of the Act. I have also seen another notice titled “Notice to Sell” to the applicant. I am satisfied that this notice complies with the mandatory provisions of section 96(2 ) of the Land Act which provides that:
(1) Where a chargor is in default of the obligations under a charge and remains in default at the expiry of the time provided for the rectification of that default in the notice served on the chargor under section 90(1), a chargee may exercise the power to sell the charged land.
(2) Before exercising the power to sell the charged land, the chargee shall serve on the chargor a notice to sell in the prescribed form and shall not proceed to complete any contract for the sale of the charged land until at least forty days have elapsed from the date of the service of that notice to sell.
(3) A copy of the notice to sell served in accordance with subsection (2) shall be served on—
(a) the Commission, if the charged land is public land;
(b) the holder of the land out of which the lease has been granted, if the charged land is a lease;
(c) a spouse of the chargor who had given the consent;
(d) any lessee and sublessee of the charged land or of any buildings on the charged land;
(e) any person who is a co-owner with the chargor;
(f) any other chargee of money secured by a charge on the charged land of whom the chargee proposing to exercise the power of sale has actual notice;
(g) any guarantor of the money advanced under the charge;
(h) any other person known to have a right to enter on and use the land or the natural resources in, on, or under the charged land by affixing a notice at the property; and
(i) any other persons as may be prescribed by regulations, and shall be posted in a prominent place at or as near as may be to the charged land.
41. The third notice required is what is commonly known as the notice of redemption issued under Rule 15(d) of the Auctioneers Rules made under the Auctioneers Act (Cap. 526) Laws of Kenya to the effect that the owner may redeem the property by payment of the amount outstanding and as indicated in the notice within 45 days.
42. Based on the material presented to the court as evaluated above, and the court properly directing itself thereto, can it conclude that there exists a right to the applicants which has apparently been infringed by the respondents as to call for an explanation or rebuttal from the respondents? In other words, have the applicants sequentially met the conditions for the grant of an interlocutory injunction above?
43. As was held in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) (supra) which the applicant has cited herein, a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of success of the case upon trial and that is clearly a standard which is higher than an arguable case.
44. From the findings above, I have come to the conclusion that there is no prima facie case established by the applicant to warrant this court to exercise its discretion to grant a temporary injunction against the 1 st respondent’s exercise of its statutory power of sale of the applicant’s property known as land parcel Nos Kwale/Diani Complex/888 and Kwale/Diani Complex/889.
45. Since the requirements are sequential and the applicant has failed to satisfy the first requirement the court cannot consider the subsequent conditions. Consequently, the application for temporary injunction fails and is dismissed with costs to the 1 st respondent.
46. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 29 th day of July 2026.
ANDAYI W. F.
JUDGE
In the presence of:
... for Plaintiffs/Applicants.
... for the 1 st Defendant/Respondent.
N/A for the 2 nd Defendant/Respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
Kwale HC Comm case no. e003/2025 temporary injunction
IN THE HIGH COURT OF KENYA AT KWALE
HIGH COURT CIVIL CASE NO. E003 OF 2025
PETER ADAM OGALO…………….................................…PLAINITFF/APPLICANT
VERSUS
ABSA BANK KENYA PLC.............................................1 ST DEFENDANT/RESPONDENT
TREVO AUCTIONEERS…………………......................2 ND DEFENDANT/RESPONDENT
RULING
1. The plaintiff’s /applicant’s Notice of Motion dated 9 th July 2025 seeks an order of temporary injunction to restrain the defendants/respondents acting jointly or severally either by themselves or through their servants, agents, employees or any one authorized to act for them from selling, offering for sale, leasing, taking occupation of and or otherwise interfering with the applicant’s title, right and interest over property Title Nos. Kwale/Diani /Complex/888 and Kwale/Diani/Complex/889 pending the hearing and determination of the suit.
2. The application is brought under Article 40(1) of the Constitution, sections 68, 69 & 90 of the Land Registration Act (Cap. 300) Laws of Kenya, sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act (Cap. 21) Laws of Kenya; Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010.
3. The grounds in support of the application are set out on the face of the application and expounded in the supporting affidavit sworn on 9 th July 2026 by Peter Adam Ogalo, the plaintiff/applicant (the borrower). It emerges from the application that the applicant’s properties, land parcel title No. Kwale/Diani Complex/888 and Kwale/Diani Complex/889 are under threat of sale by the 1 st respondent through the 2 nd respondent who has issued the applicant with a Notification of Sale of the subject properties by way of public auction on 17 th July 2025. The threatened sale is pursuant to the 1 st respondent’s exercise of its statutory power of sale upon a charge registered upon the said parcels of land as security for a mortgage facility of KShs 25,600,000/= from the 1 st respondent. It is the applicant’s contention that the 1 st respondent’s intended sale is unlawful for reasons that the interest rates and monthly installments were increased without notice contrary to the letter of offer and that the 1 st respondent has refused to disclose the basis of the exorbitant arrears it has added on the mortgage facility.
4. It is the applicant’s case that he obtained a mortgage facility for Kshs 25,600,000/= only from the 1 st respondent vide a letter of offer dated 26 th July 2022. The said loan was repayable in 180 monthly installments of Kshs 323,902/= at an interest rate of 13.79% per annum until payment in full. A charge was subsequently created over the suit properties as security for the loan advanced. It was a term of the loan in the letter of offer that the lender shall give one month’s notice of any intention to revise the rate of interest. As at the time of making this application, the 1 st respondent had repaid the loan for a period of 3 years in liquidation of the loan. The copies of the titles and the letter of offer are annexed to the supporting affidavit.
5. The applicant contends that after he repaid the mortgage facility for 3 years the 1 st respondent unilaterally increased the monthly repayments and interest rates which increased the arrears exorbitantly and in turn the 1 st respondent begun issuing contrary arrears in the loan statements. Despite numerous enquiries the 1 st respondent failed to explain the exorbitant arrears which have now accumulated to Kshs. 28,173, 315,80/= devoid of any notice or justification causing the applicant to temporarily halt the monthly installments. A sample of the loan statement has been annexed to the supporting affidavit.
6. The 1 st respondent instructed the 2 nd respondent, Trevor Auctioneers to issue the applicant with a 45-day notice of sale of the suit property and the same was fixed for public auction on 17 th July 2025. The notification of sale is annexed to the supporting affidavit.
7. According to the applicant, the intended public auction is irregular and illegal as it lacks proper, procedural legal notices by the respondents herein. The applicant thus deposes that failure to issue the restraining order the suit property shall be sold by way of public auction prejudicing his right to property and he shall suffer irreparable loss should the property be transferred to a third party.
8. On the 9 th July 2025 the court ordered that the respondents be served and file their responses within 10 days. Leave to file a supplementary affidavit was granted to be filed within 3 days of service of the responses. Further the court issued a temporary injunction against the respondents, acting jointly or through any other person authorized to act for them or on their behalf from selling, offering for sale, leasing, taking occupation of, property No. Kwale/Diani Complex/888 and Kwale/Diani Complex/889 pending hearing and determination of the suit on condition that the applicant deposits with the 1 st respondent in to his mortgage account an amount of Kshs. 1,300,000/= within the next 10 days which is equivalent to 4 monthly installments for the mortgage facility.
9. The application is opposed by the 1 st respondent through a replying affidavit sworn on 17 th July 2025 by Samuel Njuguna, legal officer of the 1 st respondent who deposes that the application is devoid of merit, lodged in bad faith and ought to be dismissed with costs.
10. He has set out the case for the 1 st respondent against the applicant being that the applicant was advanced a financial accommodation of Kshs 25,600,000/= that was secured by the registration of the charge over the properties Title Nos. Kwale/Diani/Complex/888 and Kwale/Diani/Complex 889. The applicant defaulted in servicing his loan which necessitated the realization of the securities through the statutory power of sale. The respondent annexed to the replying affidavit the copies of the title deeds confirming the respective charges had been registered against the titles.
11. He deposes that the statutory notice dated 11 th November 2024 was issued as per section 90 of the Land Act. According to the 1 st respondent no written law was violated as the applicant had defaulted in payment up to KShs. 28, 173, 315.80/= and does not deserve the injunctive orders sought. Counsel annexed the statutory notice dated 11 th November 2024 and the loan statement of the applicant.
12. The deponent deposes that the applicant had requested for a restructuring of the loan terms from the 1 st respondent.
13. The deponent further deposes that the applicant had been issued with a 40 days’ notice as required by law and annexed the notice dated 17 th February 2025 from Samuel Gitonga and Associates, advocates for the 1 st respondent. At the point of issuance of the 40 days’ notice the loan arrears were Kshs. 27,392,383.35/= due to the continued default from KShs. 26,349,327.35/= during the issuance of the ninety days’ notice. As at the time of issuing the redemption notice and notice to sale the outstanding loan was KShs. 28, 173, 315.80/=.
14. The 1 st respondent contends that upon the applicant’s failure to comply with the statutory notices the redemption notice was issued by the 2 nd respondent on instructions of the 1 st respondent when the arrears were Kshs. 28, 173,315.80/=.
15. The 1 st respondent deposes that at the ex-parte stage the condition for grant of the order of temporary injunction was that the applicant deposits KShs. 1,300,000/= with the 1 st respondent. However, the same was not deposited and therefore the condition was not complied with and the applicant is not deserving of the equitable relief of temporary injunction and the application be dismissed with costs.
16. Parties disposed of the application by way of written submissions. Learned counsel for the applicant filed written submissions dated 18 th September 2025 whereas learned counsel’s submissions for the 1 st respondent are dated 3 rd November 2025. The 2 nd respondent did not participate in the application.
17. Learned counsel for the applicant refers the court to the cases of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) which reiterates the three pillars for the grant of am order of interlocutory injunction to be a prima facie case with a probability of success, irreparable injury if a temporary injunction is not granted and the balance of convenience if the court is in doubt.
18. Counsel submitted on the three conditions and how the applicant has met the threshold for the grant of the temporary injunctive orders. On prima facie case counsel relied on the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) where it was held that a prima facie case is more than an arguable case. The evidence must show an infringement of a right and the probability of success of the case upon trial. Counsel contended that the applicant has provided the court with documentary evidence to support his case that he was servicing the loan up to a certain point when the 1 st respondent arbitrarily inflated the rate of interest without the consent of the applicant contrary to the terms of the loan agreement thereby increasing the monthly installments payable. Counsel submits that the applicant acknowledges the mortgage and has provided statements on servicing it.
19. On irreparable injury, counsel relied on the case of Nguruman (supra) and argued that the applicant has enjoyed quiet possession from the date he entered in to the mortgage arrangement with the 1 st respondent up until when the 2 nd respondent threatened to auction the applicant’s property. He contends that he has shown that he will suffer irreparable damage if the injunction is not issued in favor of the applicant.
20. On the third limb on balance of convenience counsel relied on the cases of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) and Kenya Elecricity Transmission Company Limited v Kibotu Limited [2019] KEELC 113 (KLR) where the court in defining the balance of convenience held that the convenience caused to the applicant would be greater than that which would be caused to the respondent if an injunction is not granted. Counsel submitted that the applicant will suffer the greatest loss if the interlocutory orders are not granted.
21. The 1 st respondent raised one issue for determination in its submissions on whether the applicant has satisfied the test for the grant of temporary injunction as set out in the case of Giella Vs Cassman Brown and Company Limited (1973) EA 358 which laid out the principles for the grant of an interlocutory injunction which include (1) first, prima facie case with a probability of success (2) applicant must show he will suffer irreparable injury which cannot be adequately compensated by damages (3) if the court is in doubt, it will decide an application on the balance of convenience.
22. On the first condition of prima facie case learned counsel quoted the case law of Mrao Ltd (supra) . Learned counsel submitted that in order for a prima facie to be shown to have been established from the material placed before the court, it should allude to the violation of the applicant’s right by the opposing party. Counsel submitted that the applicant does not have a prima facie case for the reason that the applicant has failed to tender any evidence that he is dutifully servicing the loan as alleged in the application. That for that reason, he has approached the court of equity with unclean hands and is not deserving of the equitable remedy of injunction.
23. Learned counsel submits that the 1 st respondent followed due process in an attempt to realize the charged property in exercise of its power of sale after the applicant failed to service the loan as per the loan agreement.
24. On the second limb of whether the applicant shall suffer irreparable injury that cannot be compensated by an award of damages counsel relied on the cases of Pius Kipchirchir (supra), and the others cited above by the applicant where an irreparable injury was defined to be one that cannot be compensated for in damages. So that where damages recoverable in law is an adequate remedy and the respondent is capable of paying, the temporary injunction order will not issue. Counsel urged the court to take cognizance of the indulgence extended to the applicant by the respondent. Further that the applicant continued to default despite the demand notice, statutory notice, Forty days’ notice and the redemption notice.
25. On the limb of whether the balance of convenience favors the applicant, learned counsel submitted that the applicant has failed to prove the existence of the prima facie case with a probability of success and irreparable injury. He asserts that this limb should fail. Counsel relied on the case of East African Development Bank v Hyundai Motors Kenya Limited [2006] KECA 369 (KLR) where the Court of Appeal held that the court will only consider the balance of convenience where there is doubt. It is the 1 st respondent’s submissions that the pleadings and submissions filed alleviate any doubts.
26. Learned counsel submitted that the applicant has failed to meet the test for the grant of the temporary injunction as set out in the Giella case and urged the court to dismiss the application with costs.
27. I have considered the application and the response thereto by the 1 st respondent as well as the submissions by learned counsels. The main issue for determination in this application is whether the conditions for issuance of temporary injunction have been met by the applicant.
28. The traditional conditions to be met by a party seeking a temporary injunction are set out in the case of Giella v. Cassman Brown Co. Ltd [1973] EA 358 to wit:-
a. Has the applicant established a prima facie case with a probability of success?
b. Will the applicant suffer irreparable injury unless an injunction is issued? and,
c. where there is doubt in the mind of the court the application will be determined depending on where the balance of convenience lies.
29. The Court of Appeal in the case of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) restated the above test as follows:
In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
(a) establish his case only at a prima facie level,
(b) demonstrate irreparable injury if a temporary injunction is not granted, and
(c) allay any doubts as to (b) by showing that the balance of convenience is in his favour.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. 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. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.
It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”
30. The applicant having failed to respond to the facts deposed to by the 1 st respondent in the replying affidavit, the same remain uncontroverted and so have to be taken as the correct position on the matter as was held in the case of Mohamed & Another v. Haidara [1972] E.A. 166 and Kenya Reinsurance Corporation v R. M. Mutiso [2009] KEHC 2203 (KLR) which I agree with.
31. The first test is whether the applicant has established a prima facie case with a probability of success. The guide here is the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) where the Court of Appeal defined a prima facie case as follows;
“...in civil cases, 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 as to call for an explanation or rebuttal from the latter.”
32. The application is based on various grounds set out by the applicant. The first ground is that the mortgage facility of KShs 25,600,000/= was offered through concealment and misrepresentation of facts that the 1 st respondent was licenced to give mortgage in compliance with the law. However, the supporting affidavit does substantiate this assertion by way any particulars of such concealment and misrepresentation of facts or provide any evidence that the 1 st respondent is not licenced to offer mortgage facilities. It is deposed in the supporting affidavit that it was a term of the letter of offer that the lender shall give one-month notice of any intention to revise the rate of interest on the mortgage loan. I have looked at the letter of offer dated 26 th July 2022 and I do not see that provision in clause (vi) on Rate of Interest Payable. In fact, the clause provides that the rate of interest may be varied from time to rime by the bank in its sole discretion.
33. The applicant also complains that after diligently paying the loan facility for three years the 1 st respondent unilaterally increased the monthly repayments and interest rate without notice which steadily increased his arrears exorbitantly. He annexed what he termed a sample copy of loan statement for the period 1 st May 2023 to 27 th April 2024 without indicating why he was not providing the actual loan statement. The 1 st respondent however provided the full loan statement with entries of relevant transactions from 26 th August 2022 to 7 th July 2025. The statements are similar in all the relevant entries provided and so I find that it is one and the same statement. In that statement, it is shown that the applicant properly serviced his loan for the first four months until December 2022. In January 2023, there is charged a penalty interest. Under the terms of the letter of offer, any part of the loan that is in arrears would be charged such default interest rate as advised by the Bank from time to time which was then indicated to be 18% (revisable). Looking at the statement of account, I note that there was default in servicing the loan by not paying the agreed installments on various occasions. Therefore, there is evidence, besides the applicant’s own concession, that he was in default of repayment of the loan. The contention that he had diligently repaid the loan for three years is not supported by the loan statement.
34. It follows that for any installment falling in arrears the bank would charge the default interest rate on that sum. Other than placing a copy of thethe “sample” statement of account before the court, the applicant has not bothered to pinpoint any evidence of unilateral increase of loan interest and repayments by the 1 st respondent without notice to the applicant as alleged.
35. The applicant further deposes that the 1 st respondent denied him a plausible explanation for contradictions in his loan statement but has not provided any evidence such as correspondence or even meetings held over the issue. I therefore find that the contention by the applicant that the intended sale of his charged property by the 1 st respondent is unlawful for reasons that the 1 st respondent is in breach of the terms of the letter of offer for increasing the monthly instalments without notice and has refused to disclose the basis of the irregular and exorbitant arrears added to the mortgage has no basis.
36. The applicant does not dispute the fact that the credit facility is in arrears. The 1 st respondent has produced the statement of account showing that indeed the credit facility is in arrears. It has been held in various cases that a dispute as to the amount owed is not sufficient ground for an injunction to be granted. I am persuaded to follow the statement by the High Court in the case of Palmy Company Limited v Consolidated Bank of Kenya Limited [2014] KEHC 4811 (KLR) that;
“Unless there are other cogent grounds, disputes on the amounts owing or interest charged will not be the sole basis for grant of an injunction against a chargee who is exercising the statutory power of sale of the charged property…”
37. The court in the above case was citing Halsbury’s Laws of England, Vol. 32 (4 th Edition) paragraph 725 where it was stated that:
‘’725. When mortgagee may be restrained from exercising power of sale
The mortgagee will not be restrained from exercising his power of sale because the amount due is in dispute, or because the mortgagor has begun a redemption action, or because the mortgagor objects to the manner in which the sale is being arranged. He will be restrained, however, if the mortgagor pays the amount claimed into court, that is, the amount which the mortgagor claims to be due to him, unless, on the terms of the mortgage, the claim is excessive’’.
38. On its part, the 1 st respondent has provided a statement of account showing show how the arrears have accrued to the amount being claimed as per the statutory notices issued. The fact that the loan is in arrears and is not being serviced is not in contention and is supported by the statement of account.
39. There is no dispute by the applicant that it is in default of repayment of the loan amount. Although the applicant alleged that notices to him as are provided for under the law were not issued, the respondent ably refuted that allegation by producing all the notices issued. The notices issued are in compliance with sections 90 and 96 of the Land Act. The notices were asking the applicant to remedy the default within 3 months by paying the outstanding sum and his right to apply to court for relief. I am satisfied that the notices to the applicant fully complied with section 90(1) of the Land Act which in part provides that:
(1) If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be in default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.
(2) The notice required by subsection (1) shall adequately inform the recipient of the following matters—
(a) the nature and extent of the default by the chargor;
(b) if the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed;
(c) if the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so as to rectify the default and the time, being not less than two months, by the end of which the default must have been rectified;
(d) the consequence that if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of the remedies referred to in this section in accordance with the procedures provided for in this sub-part; and
(e) the right of the chargor in respect of certain remedies to apply to the court for relief against those remedies.
(3) If the chargor does not comply within ninety days after the date of service of the notice under, subsection (1), the chargee may—
(a) sue the chargor for any money due and owing under the charge;
(b) appoint a receiver of the income of the charged land;
(c) lease the charged land, or if the charge is of a lease, sublease the land;
(d) enter into possession of the charged land; or
(e) sell the charged land;
(4) …
40. There is no indication that the applicant remedied the default after the expiry of the 3 months’ (90-days) notice issued under section 90 of the Act. I have also seen another notice titled “Notice to Sell” to the applicant. I am satisfied that this notice complies with the mandatory provisions of section 96(2 ) of the Land Act which provides that:
(1) Where a chargor is in default of the obligations under a charge and remains in default at the expiry of the time provided for the rectification of that default in the notice served on the chargor under section 90(1), a chargee may exercise the power to sell the charged land.
(2) Before exercising the power to sell the charged land, the chargee shall serve on the chargor a notice to sell in the prescribed form and shall not proceed to complete any contract for the sale of the charged land until at least forty days have elapsed from the date of the service of that notice to sell.
(3) A copy of the notice to sell served in accordance with subsection (2) shall be served on—
(a) the Commission, if the charged land is public land;
(b) the holder of the land out of which the lease has been granted, if the charged land is a lease;
(c) a spouse of the chargor who had given the consent;
(d) any lessee and sublessee of the charged land or of any buildings on the charged land;
(e) any person who is a co-owner with the chargor;
(f) any other chargee of money secured by a charge on the charged land of whom the chargee proposing to exercise the power of sale has actual notice;
(g) any guarantor of the money advanced under the charge;
(h) any other person known to have a right to enter on and use the land or the natural resources in, on, or under the charged land by affixing a notice at the property; and
(i) any other persons as may be prescribed by regulations, and shall be posted in a prominent place at or as near as may be to the charged land.
41. The third notice required is what is commonly known as the notice of redemption issued under Rule 15(d) of the Auctioneers Rules made under the Auctioneers Act (Cap. 526) Laws of Kenya to the effect that the owner may redeem the property by payment of the amount outstanding and as indicated in the notice within 45 days.
42. Based on the material presented to the court as evaluated above, and the court properly directing itself thereto, can it conclude that there exists a right to the applicants which has apparently been infringed by the respondents as to call for an explanation or rebuttal from the respondents? In other words, have the applicants sequentially met the conditions for the grant of an interlocutory injunction above?
43. As was held in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) (supra) which the applicant has cited herein, a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of success of the case upon trial and that is clearly a standard which is higher than an arguable case.
44. From the findings above, I have come to the conclusion that there is no prima facie case established by the applicant to warrant this court to exercise its discretion to grant a temporary injunction against the 1 st respondent’s exercise of its statutory power of sale of the applicant’s property known as land parcel Nos Kwale/Diani Complex/888 and Kwale/Diani Complex/889.
45. Since the requirements are sequential and the applicant has failed to satisfy the first requirement the court cannot consider the subsequent conditions. Consequently, the application for temporary injunction fails and is dismissed with costs to the 1 st respondent.
46. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 29 th day of July 2026.
ANDAYI W. F.
JUDGE
In the presence of:
... for Plaintiffs/Applicants.
... for the 1 st Defendant/Respondent.
N/A for the 2 nd Defendant/Respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
Kwale HC Comm case no. e003/2025 temporary injunction