REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCCC NO. E009 OF 2025
PREJAPATI SHAILESH LALLUBHAI
T/A VIDEHI ENTERPRISES & HARDWARE……………………………………….…………PLAINTIFF
VERSUS
COOPERATIVE BANK OF KENYA………………….1 ST DEFENDANT
NIRA AUCTIONEERS …………………………..……2 ND DEFENDANT
RULING
1. In a motion dated the 3 rd September 2024 brought under sections 3, 3A of the CPA and Order40 Rules 1,2 & 3 of the CPR the applicant seeks the following orders;
i. Spent
ii. That pending the inter partes hearing of the application the 1 st and 2 nd defendants be themselves, relatives, family members, servants, workers , agents and anyone else acting through them be and are hereby stopped from selling by public auction under Private Treaty Applicant’s properties and Loan securities land parcels title numbers L.R.NO. 7996/7, NDIVISI/MUCHI/2604, NORTH KABRAS/KIVA/VAYWA/1480 and NDIVIAI/MUCHUI/574.
iii. That pending hearing and determination of the suit the 1 st and 2 nd defendants be themselves, relatives, family members, servants, workers , agents and anyone else acting through them be and are hereby stopped from selling by public auction under Private Treaty Applicant’s properties and Loan securities land parcels title numbers L.R.NO. 7996/7, NDIVISI/MUCHI/2604, NORTH KABRAS/KIVA/VAYWA/1480 and NDIVIAI/MUCHUI/574.
iv. Spent
2. The plaintiff/applicant was granted a loan facility by the 1st respondent in 2014, secured by the following properties: LR NO. 7796 (I.R.N 5950), Ndivisi / Muchi/574, and Ndivisi/Khalumuli /2604. The loan amount was Kshs. 20 million. The applicant admits to commencing loan repayment by paying instalments of Kshs. 596,500, but he defaulted after 36 months. He resumed payments in 2018 and paid three instalments totalling Kshs. 1,741,500. He paid an additional sum of Kshs. 582,000. According to the applicant, due to the illness and passing of close family members, he has failed to pay the loan from 2018 to date. The total amount he has paid is Kshs. 24,471,500. He has requested loan statements; however, the 1st respondent has failed to provide them.
3. The 1st Respondent's response is that after the applicant took the loan, he defaulted on repayment from 2018, and as of 16.7.2025, the applicant owed the 1st Respondent a sum of Kshs. 39,471,044.53. The Respondent has consistently provided account statements to the applicant. The applicant has never raised any issues with the statements. The applicant has always acknowledged difficulties in repaying the loan and has not rectified the default despite various demands. The Respondent has fully complied with the terms of the loan agreement and the law in exercising its statutory power of sale. The motion is bad in law as it contravenes the well-established principle that a court cannot re-write a contract between the parties (see National Bank of Kenya vs Pipeline Samkolit (K) Ltd & Another [2001] eKLR). The applicant retains the right of redemption and is not prevented from exercising it before sale, but he has no right to unilaterally alter the terms of the loan agreement by deciding when to pay and/or restructure it.
4. The applicant, in his supplementary affidavit, reiterated his assertions in his supporting affidavit and further states that the 1st respondent failed to fulfil its duty to him as a client, as required under the Constitution and the Consumer Protection Act. He also claims that the 1st respondent’s failure to provide an accurate statement of account is intended to exploit him financially, in clear breach of his rights as a consumer of its services. He paid a sum of Kshs. 24,000,000/- but is at a loss as to how the figure increased to Kshs. 39,471,044.53.
5. Parties filed written submissions. The plaintiff, in his submissions, argues that the 1st respondent has failed to provide a loan agreement and loan statement to show how much was borrowed and paid, as well as the interest. He contends that the 1st respondent is hiding information to the prejudice of the plaintiff. It was further argued that the 1st respondent has denied him the constitutional and statutory right to information as a consumer of its services, which is necessary to enable him to make an informed decision on the contract. The applicant sought to rely on the duplum rule and contended that he has a prima facie case. Regarding whether the applicant will suffer irreparable loss, it was submitted that he will indeed suffer such loss, and allowing the 1st respondent to proceed with the auction would mean that the applicant faces permanent economic oblivion due to illegal, unconscionable, oppressive, and fraudulent practices by the 1st respondent. It was further submitted that the balance of convenience tilts in favour of granting the injunction.
6. The 1st respondent submitted the following; regarding whether the applicant has satisfied the threshold for the grant of an injunction, it was argued that the applicant has not fully repaid the loan and therefore has not met the necessary criteria for an injunction (see Giella vs Cassman Brown Limited [1973] E.A.358). It was further submitted that the 1st respondent has demonstrated that the applicant is in default, and there is no basis for his prayer for an injunction, as granting it would materially alter the loan contract and effectively rewrite the loan agreement (see Nelson Riccardo Pasotto vs Maurizio Marino [2020] eKLR).
7. The 1st respondent further submitted that, contrary to the applicant’s allegations, the exercise of the 1st Respondent's statutory right of sale had not in any way obstructed the guarantor’s right of redemption. Furthermore, pursuant to section 89(2) of the Land Act, the right of redemption cannot be limited except in accordance with the provisions of the Act (see Sheng Quarry Limited vs National Industrial & Credit Bank Limited [2019]eKLR). The 1st respondent has issued all the requisite notices, and the applicant has never disputed these notices.
8. Regarding whether the applicant will suffer irreparable harm if the injunction is not granted, the 1st Respondent submitted that the applicant would not suffer irreparable harm that could not be compensated monetarily, even if the applicant were to succeed. The dispute is quantifiable, as the applicant would assign figures to any loss he might incur. The applicant has not demonstrated that the 1st respondent would be unable to pay a monetary award if the court rules in his favour. Finally, it was argued that the balance of convenience favours denying the injunction, as granting it would cause greater hardship to the Respondent, given that the outstanding debt would continue to accrue interest.
DETERMINATION
9. I have considered the application, including the responses and submissions filed concerning it. The principles for granting temporary injunctions were established in the case of Giella –versus- Cassman Brown and Company Limited (1973) E.A 385. These principles are that, first, an applicant must demonstrate a prima facie case with a likelihood of success. Second, an interlocutory injunction is generally not granted unless the applicant may otherwise suffer irreparable harm that cannot be adequately compensated by damages. Third, if the court is unsure, it will decide the application based on a balance of convenience.
10. A prima facie case was defined in Mrao Limited –versus- First American Bank of Kenya and 2 Others (2003) KLR 125 as a case which, based on the material presented to the court, a tribunal properly directing itself would conclude that there is a right apparently infringed by the opposite party, requiring an explanation or rebuttal from them. A prima facie case is more than an arguable case.
11. In Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal held: -
“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion ... The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”
12. Guided by the principles established in the above cases, it is my considered view that the applicant admits to having taken a loan from the 1st Respondent. He admits to being in default due to certain issues within his family. He also states that he was willing to pay the outstanding balance, but the defendant refused to provide him with the statement. It is clear that the parties have previously appeared in court and that the applicant is fully aware of the pending loan. The court, prior to delivering this ruling, requested the 1st Respondent to produce parts of the statement, and despite being issued the same the applicant did not respond. In my opinion, the applicant is aware of the outstanding debt. Consequently, I find that the applicant has failed to establish a prima facie case in his favour.
13. In the second principle of irreparable harm, it is the applicant's responsibility to demonstrate that he will suffer irreparable harm. In Nguruman Limited v. Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal held: -
“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion ... The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”
14. I n Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR, the Court considered the Halsbury’s laws of England on what irreparable loss is and stated that: -
“First, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages.”
15. The applicant in this case willingly entered into the contract and obtained the loan facility from the defendant and has now defaulted. He argues that the interest being charged to his account is unconscionable. I must be careful not to re-write the contract between the parties. I find that the defendant is a stable institution that can compensate the applicant in the event that it suffers a loss.
16. On a balance of convenience, I believe it tilts in favour of the 1st respondent, who is owed money by the applicant. It is clear that the applicant approaches the court when the 1st respondent acts, as provided by law, to recover the amounts owed. Therefore, I find that the application dated 3.9.2025 is without merit, as the applicant has failed to persuade this court that he is entitled to the orders of injunction sought. The application is dismissed with costs to the 1st respondent.
Dated, signed and delivered at Bungoma this 13 th Day of March 2026.
R.E.OUGO
JUDGE
In the presence of:
Applicant- Absent
Respondents – Absent
Wilkister – C/A
HCCC NO. E009 OF 2025- RULING 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCCC NO. E009 OF 2025
PREJAPATI SHAILESH LALLUBHAI
T/A VIDEHI ENTERPRISES & HARDWARE……………………………………….…………PLAINTIFF
VERSUS
COOPERATIVE BANK OF KENYA………………….1 ST DEFENDANT
NIRA AUCTIONEERS …………………………..……2 ND DEFENDANT
RULING
1. In a motion dated the 3 rd September 2024 brought under sections 3, 3A of the CPA and Order40 Rules 1,2 & 3 of the CPR the applicant seeks the following orders;
i. Spent
ii. That pending the inter partes hearing of the application the 1 st and 2 nd defendants be themselves, relatives, family members, servants, workers , agents and anyone else acting through them be and are hereby stopped from selling by public auction under Private Treaty Applicant’s properties and Loan securities land parcels title numbers L.R.NO. 7996/7, NDIVISI/MUCHI/2604, NORTH KABRAS/KIVA/VAYWA/1480 and NDIVIAI/MUCHUI/574.
iii. That pending hearing and determination of the suit the 1 st and 2 nd defendants be themselves, relatives, family members, servants, workers , agents and anyone else acting through them be and are hereby stopped from selling by public auction under Private Treaty Applicant’s properties and Loan securities land parcels title numbers L.R.NO. 7996/7, NDIVISI/MUCHI/2604, NORTH KABRAS/KIVA/VAYWA/1480 and NDIVIAI/MUCHUI/574.
iv. Spent
2. The plaintiff/applicant was granted a loan facility by the 1st respondent in 2014, secured by the following properties: LR NO. 7796 (I.R.N 5950), Ndivisi / Muchi/574, and Ndivisi/Khalumuli /2604. The loan amount was Kshs. 20 million. The applicant admits to commencing loan repayment by paying instalments of Kshs. 596,500, but he defaulted after 36 months. He resumed payments in 2018 and paid three instalments totalling Kshs. 1,741,500. He paid an additional sum of Kshs. 582,000. According to the applicant, due to the illness and passing of close family members, he has failed to pay the loan from 2018 to date. The total amount he has paid is Kshs. 24,471,500. He has requested loan statements; however, the 1st respondent has failed to provide them.
3. The 1st Respondent's response is that after the applicant took the loan, he defaulted on repayment from 2018, and as of 16.7.2025, the applicant owed the 1st Respondent a sum of Kshs. 39,471,044.53. The Respondent has consistently provided account statements to the applicant. The applicant has never raised any issues with the statements. The applicant has always acknowledged difficulties in repaying the loan and has not rectified the default despite various demands. The Respondent has fully complied with the terms of the loan agreement and the law in exercising its statutory power of sale. The motion is bad in law as it contravenes the well-established principle that a court cannot re-write a contract between the parties (see National Bank of Kenya vs Pipeline Samkolit (K) Ltd & Another [2001] eKLR). The applicant retains the right of redemption and is not prevented from exercising it before sale, but he has no right to unilaterally alter the terms of the loan agreement by deciding when to pay and/or restructure it.
4. The applicant, in his supplementary affidavit, reiterated his assertions in his supporting affidavit and further states that the 1st respondent failed to fulfil its duty to him as a client, as required under the Constitution and the Consumer Protection Act. He also claims that the 1st respondent’s failure to provide an accurate statement of account is intended to exploit him financially, in clear breach of his rights as a consumer of its services. He paid a sum of Kshs. 24,000,000/- but is at a loss as to how the figure increased to Kshs. 39,471,044.53.
5. Parties filed written submissions. The plaintiff, in his submissions, argues that the 1st respondent has failed to provide a loan agreement and loan statement to show how much was borrowed and paid, as well as the interest. He contends that the 1st respondent is hiding information to the prejudice of the plaintiff. It was further argued that the 1st respondent has denied him the constitutional and statutory right to information as a consumer of its services, which is necessary to enable him to make an informed decision on the contract. The applicant sought to rely on the duplum rule and contended that he has a prima facie case. Regarding whether the applicant will suffer irreparable loss, it was submitted that he will indeed suffer such loss, and allowing the 1st respondent to proceed with the auction would mean that the applicant faces permanent economic oblivion due to illegal, unconscionable, oppressive, and fraudulent practices by the 1st respondent. It was further submitted that the balance of convenience tilts in favour of granting the injunction.
6. The 1st respondent submitted the following; regarding whether the applicant has satisfied the threshold for the grant of an injunction, it was argued that the applicant has not fully repaid the loan and therefore has not met the necessary criteria for an injunction (see Giella vs Cassman Brown Limited [1973] E.A.358). It was further submitted that the 1st respondent has demonstrated that the applicant is in default, and there is no basis for his prayer for an injunction, as granting it would materially alter the loan contract and effectively rewrite the loan agreement (see Nelson Riccardo Pasotto vs Maurizio Marino [2020] eKLR).
7. The 1st respondent further submitted that, contrary to the applicant’s allegations, the exercise of the 1st Respondent's statutory right of sale had not in any way obstructed the guarantor’s right of redemption. Furthermore, pursuant to section 89(2) of the Land Act, the right of redemption cannot be limited except in accordance with the provisions of the Act (see Sheng Quarry Limited vs National Industrial & Credit Bank Limited [2019]eKLR). The 1st respondent has issued all the requisite notices, and the applicant has never disputed these notices.
8. Regarding whether the applicant will suffer irreparable harm if the injunction is not granted, the 1st Respondent submitted that the applicant would not suffer irreparable harm that could not be compensated monetarily, even if the applicant were to succeed. The dispute is quantifiable, as the applicant would assign figures to any loss he might incur. The applicant has not demonstrated that the 1st respondent would be unable to pay a monetary award if the court rules in his favour. Finally, it was argued that the balance of convenience favours denying the injunction, as granting it would cause greater hardship to the Respondent, given that the outstanding debt would continue to accrue interest.
DETERMINATION
9. I have considered the application, including the responses and submissions filed concerning it. The principles for granting temporary injunctions were established in the case of Giella –versus- Cassman Brown and Company Limited (1973) E.A 385. These principles are that, first, an applicant must demonstrate a prima facie case with a likelihood of success. Second, an interlocutory injunction is generally not granted unless the applicant may otherwise suffer irreparable harm that cannot be adequately compensated by damages. Third, if the court is unsure, it will decide the application based on a balance of convenience.
10. A prima facie case was defined in Mrao Limited –versus- First American Bank of Kenya and 2 Others (2003) KLR 125 as a case which, based on the material presented to the court, a tribunal properly directing itself would conclude that there is a right apparently infringed by the opposite party, requiring an explanation or rebuttal from them. A prima facie case is more than an arguable case.
11. In Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal held: -
“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion ... The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”
12. Guided by the principles established in the above cases, it is my considered view that the applicant admits to having taken a loan from the 1st Respondent. He admits to being in default due to certain issues within his family. He also states that he was willing to pay the outstanding balance, but the defendant refused to provide him with the statement. It is clear that the parties have previously appeared in court and that the applicant is fully aware of the pending loan. The court, prior to delivering this ruling, requested the 1st Respondent to produce parts of the statement, and despite being issued the same the applicant did not respond. In my opinion, the applicant is aware of the outstanding debt. Consequently, I find that the applicant has failed to establish a prima facie case in his favour.
13. In the second principle of irreparable harm, it is the applicant's responsibility to demonstrate that he will suffer irreparable harm. In Nguruman Limited v. Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal held: -
“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion ... The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”
14. I n Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR, the Court considered the Halsbury’s laws of England on what irreparable loss is and stated that: -
“First, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages.”
15. The applicant in this case willingly entered into the contract and obtained the loan facility from the defendant and has now defaulted. He argues that the interest being charged to his account is unconscionable. I must be careful not to re-write the contract between the parties. I find that the defendant is a stable institution that can compensate the applicant in the event that it suffers a loss.
16. On a balance of convenience, I believe it tilts in favour of the 1st respondent, who is owed money by the applicant. It is clear that the applicant approaches the court when the 1st respondent acts, as provided by law, to recover the amounts owed. Therefore, I find that the application dated 3.9.2025 is without merit, as the applicant has failed to persuade this court that he is entitled to the orders of injunction sought. The application is dismissed with costs to the 1st respondent.
Dated, signed and delivered at Bungoma this 13 th Day of March 2026.
R.E.OUGO
JUDGE
In the presence of:
Applicant- Absent
Respondents – Absent
Wilkister – C/A
HCCC NO. E009 OF 2025- RULING 2