Background and Introduction
1. I have considered the Notice of Motion dated 18th June 2025, in which the plaintiff seeks injunctive relief restraining the respondents from repossessing, selling, or otherwise interfering with the suit property known as NAIROBI BLOCK 115/1128. The plaintiff also seeks a review of the Orders issued on 10th February 2025, which dismissed the earlier application for injunction dated 2nd August 2024.
2. The applicant’s principal contention is that the bank statements and documents relied upon by the Court failed to account for proceeds from the sale of two motor vehicles previously attached and sold in 2022 by the Bank in exercise of its statutory power of sale. At the time of sale, the vehicles were valued at Kshs. 2.1 million. The applicant argues that this omission renders the bank statements incomplete, thereby preventing an accurate computation of the outstanding loan balance. I have equally considered the replying affidavit and the written submissions filed by both parties.
Analysis and Determination
3. The central issue for determination is whether the applicant has satisfied the threshold for review and injunctive relief. The respondents invite the Court to find that the application is res judicata, having already been conclusively determined in the Ruling delivered on 10th February 2025.
4. Upon reviewing that Ruling, I note that this Court pronounced itself with finality on the question of the loan due and outstanding from the applicant to the 1st respondent, stating:
“On the first requirement, the facilities extended by the 1st respondent are not controverted. The applicant however contends that having paid an amount of Kshs. 6,000,000/= and considering that the respondents had repossessed two motor vehicles belonging to the applicant, the amount due, if any, ought to have been sufficiently covered. The bank statements produced by the 1st respondent at pages 89 to 94 however tell a different story.
T'he records clearly indicate that as of 27th Mạrch, 2023, the applicant was in default by Kshs. 10,737,308.99, an amount that continues to accrue interest. Since the authenticity of the bank statements is not disputed, they serve as prima facie evidence of the arrears, as per Section 176 of the Evidence Act.
The submission by the applicant that the amount had been paid off is further refuted by the fact that the 1st respondent restructured the facility on two occasions at the request of the applicant. The first restructuring was on 3rd May 2021 when the account was in arrears by Kshs. 8,241,364/=. The second took place on and 22nd December 2021 at which time the arrears stood at Kshs. 8,160,506/=. In addition, the loan statements were supplied to the applicant via an email of 16th January 2023, found at pages 87-88 of the 1st respondent's documents. These two factors undermine the applicant's claim of being unaware of the exact default amount and render any request for account reconciliation or statement production moot.”
5. Indeed, I couldn’t agree more with the 1st respondent that the application is for dismissal as it is res judicata. In any case, even for the sake of finality on the new ground raised, the applicant cannot be permitted to approbate and reprobate by asserting on one hand that the loan was fully settled, while simultaneously requesting restructuring of the facility. Even if I were to consider the latter restructuring of December 2021, when the arrears stood at Kshs. 8,160,506/=, the alleged sale of the motor vehicles at the purported price would not extinguish the debt. That is besides the fact that the claim is unsupported by credible evidence.
Disposition
6. In light of the foregoing, the application dated 18th June 2025 is hereby dismissed with costs. Any interim orders previously granted are vacated forthwith.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 2ND DAY OF FEBRUARY 2026
F. MUGAMBI
JUDGE
Delivered in the presence of:
Ms Odago holding brief for Mr Mwanza for the applicant
Mr Onyango for the respondent
Lilian: Court Assistant
1. I have considered the Notice of Motion dated 18th June 2025, in which the plaintiff seeks injunctive relief restraining the respondents from repossessing, selling, or otherwise interfering with the suit property known as NAIROBI BLOCK 115/1128. The plaintiff also seeks a review of the Orders issued on 10th February 2025, which dismissed the earlier application for injunction dated 2nd August 2024.
2. The applicant’s principal contention is that the bank statements and documents relied upon by the Court failed to account for proceeds from the sale of two motor vehicles previously attached and sold in 2022 by the Bank in exercise of its statutory power of sale. At the time of sale, the vehicles were valued at Kshs. 2.1 million. The applicant argues that this omission renders the bank statements incomplete, thereby preventing an accurate computation of the outstanding loan balance. I have equally considered the replying affidavit and the written submissions filed by both parties.
Analysis and Determination
3. The central issue for determination is whether the applicant has satisfied the threshold for review and injunctive relief. The respondents invite the Court to find that the application is res judicata, having already been conclusively determined in the Ruling delivered on 10th February 2025.
4. Upon reviewing that Ruling, I note that this Court pronounced itself with finality on the question of the loan due and outstanding from the applicant to the 1st respondent, stating:
“On the first requirement, the facilities extended by the 1st respondent are not controverted. The applicant however contends that having paid an amount of Kshs. 6,000,000/= and considering that the respondents had repossessed two motor vehicles belonging to the applicant, the amount due, if any, ought to have been sufficiently covered. The bank statements produced by the 1st respondent at pages 89 to 94 however tell a different story.
T'he records clearly indicate that as of 27th Mạrch, 2023, the applicant was in default by Kshs. 10,737,308.99, an amount that continues to accrue interest. Since the authenticity of the bank statements is not disputed, they serve as prima facie evidence of the arrears, as per Section 176 of the Evidence Act.
The submission by the applicant that the amount had been paid off is further refuted by the fact that the 1st respondent restructured the facility on two occasions at the request of the applicant. The first restructuring was on 3rd May 2021 when the account was in arrears by Kshs. 8,241,364/=. The second took place on and 22nd December 2021 at which time the arrears stood at Kshs. 8,160,506/=. In addition, the loan statements were supplied to the applicant via an email of 16th January 2023, found at pages 87-88 of the 1st respondent's documents. These two factors undermine the applicant's claim of being unaware of the exact default amount and render any request for account reconciliation or statement production moot.”
5. Indeed, I couldn’t agree more with the 1st respondent that the application is for dismissal as it is res judicata. In any case, even for the sake of finality on the new ground raised, the applicant cannot be permitted to approbate and reprobate by asserting on one hand that the loan was fully settled, while simultaneously requesting restructuring of the facility. Even if I were to consider the latter restructuring of December 2021, when the arrears stood at Kshs. 8,160,506/=, the alleged sale of the motor vehicles at the purported price would not extinguish the debt. That is besides the fact that the claim is unsupported by credible evidence.
Disposition
6. In light of the foregoing, the application dated 18th June 2025 is hereby dismissed with costs. Any interim orders previously granted are vacated forthwith.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 2ND DAY OF FEBRUARY 2026
F. MUGAMBI
JUDGE
Delivered in the presence of:
Ms Odago holding brief for Mr Mwanza for the applicant
Mr Onyango for the respondent
Lilian: Court Assistant