Introduction
1. Before the Court is the Plaintiffs' Notice of Motion dated 23rd September 2025, principally seeking an interlocutory injunction restraining the 1st Defendant from exercising its statutory power of sale over Title Number Makueni/Konza South Block 1 (Marwa) 13, pending the hearing and determination of the suit. The Applicants further seek, among other reliefs, production of documents and accounts relating to the facilities secured by the suit property.
2. The application is founded on the Applicants' contention that the suit property forms part of the estate of the late Mutungi Maliti and that, although registered in the name of the 2nd Defendant, it is held by him in trust for the beneficiaries of the estate. They contend that the property was charged to the 1st Defendant without the authority or consent of the estate and its beneficiaries. They further challenge the validity of the charge and further charge, the statutory notices, the alleged spousal consent, the valuation and the amount claimed by the Bank.
3. The 1st Defendant opposes the application and maintains that it is entitled to realize its security following default. They challenge this Court’s jurisdiction, the Applicants’ locus standi, and assert that no prima facie case has been established against the sale of the property.
4. The 2nd Defendant, vide a Replying Affidavit and Grounds of Opposition both dated 22nd October 2025, denies that the property forms part of the estate. He asserts that he is its lawful and beneficial owner and denies holding it in trust. He nevertheless supports restraint of the Bank's realization process on grounds relating principally to the charge, statutory notices and loan account.
5. The 3rd Defendant takes a contrary position and supports the Applicants' assertion that the property belongs to the estate and was charged without the knowledge of the beneficiaries. The record further shows that he acknowledges that the Bank issued a ninety-day statutory notice over the property on 19th May 2025.
Analysis and Determination
6. Having considered the pleadings, affidavits and submissions, I find that the following issues arise for determination:
a) Whether this Court has jurisdiction to determine the application;
b) Whether the Applicants have locus standi to seek relief against the 1st Defendant's exercise of its statutory power of sale;
c) Whether the Applicants have established a prima facie case with a probability of success;
d) Whether the Applicants have satisfied the other requirements for the grant of an interlocutory injunction.
Whether this Court has jurisdiction to determine the application
7. The jurisdictional objection arises principally from the Applicants' assertion that the suit property belongs to the estate of the late Mutungi Maliti and that the 2nd Defendant holds it in trust. It is contended that questions concerning ownership and trust fall within the jurisdiction of the Environment and Land Court.
8. The immediate relief sought in the application, however, is directed at the 1st Defendant's exercise of its statutory power of sale as chargee.
9. In Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others [2017] KECA 79 (KLR), the Court of Appeal considered the jurisdictional boundary between the High Court and the Environment and Land Court in disputes concerning charges. It held that disputes concerning mortgages, charges, collection of dues and matters arising from the banker-customer relationship fall within the civil jurisdiction of the High Court.
10. The position was subsequently reaffirmed in Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others [2024] KECA 410 (KLR). The Court of Appeal held that a dispute whose object was to restrain a chargee from exercising its statutory power of sale did not, merely because it concerned charged land, become a dispute concerning the environment, use, occupation or title to land within the exclusive jurisdiction of the Environment and Land Court.
11. The present application is principally concerned with the realization of a charge and the exercise of the chargee's statutory remedies. I therefore find that this Court has jurisdiction to determine the application.
12. That finding does not require a determination of the competing claims of ownership or trust. Those questions are not necessary for resolving the present application.
Whether the Applicants have requisite locus standi
13. Section 103(1) of the Land Act identifies the persons who may apply for relief against the exercise by a chargee of the remedies contemplated under the Act. The provision includes the chargor, one or more joint chargors, a spouse of the chargor who was required to give consent to the creation of the charge but did not give consent, and the trustee in bankruptcy of the chargor.
14. In Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others [2024] KECA 410 (KLR), the Court of Appeal considered the standing of persons who were not parties to the charge. The Court held that persons who did not fall within the statutory categories contemplated under section 103 lacked locus standi to restrain or challenge the chargee's exercise of its statutory power of sale, and, importantly, that the third parties had no locus standi to sue for the injunctive relief sought.
15. The principle was reaffirmed in Diamond Trust Bank Kenya Limited v Kaminara Agencies Limited & 2 others [2025] KECA 48 (KLR). The Court of Appeal allowed the bank's appeal, set aside the injunction granted by the High Court and substituted an order dismissing the application. The case concerned a party who was not a party to the charge but sought to restrain the chargee's realization of the security.
16. The application of those principles to the present case is straightforward. Neither Applicant is the chargor. The 1st Applicant is the administratrix of the estate of the late Mutungi Maliti, while the 2nd Applicant is a beneficiary of that estate. Neither is a joint chargor, a spouse of the chargor within the meaning of section 103(1)(c), or the trustee in bankruptcy of the chargor.
17. I have considered the submission that the 1st Applicant, as administratrix, has a duty to protect property alleged to form part of the estate. That may be so in the administration of an estate. It does not, however, enlarge the statutory categories under section 103 of the Land Act.
18. The Applicants further contend that the property is beneficially owned by the estate. That claim is disputed. The 2nd Defendant denies the alleged trust and asserts ownership, while the 3rd Defendant supports the estate's position.
19. Whether that claim will ultimately succeed is not a matter for determination on this application. The material point is that the asserted beneficial interest does not place the Applicants within the statutory class entitled to seek relief against the chargee.
20. I accordingly find that the Applicants lack locus standi to seek an injunction restraining the 1st Defendant from exercising its statutory power of sale.
Whether the Applicants have established a prima facie case with a probability of success
21. The finding on locus is sufficient to dispose of the application. I nevertheless consider the first limb of the test for an interlocutory injunction.
22. The applicable principles are settled. In Giella v Cassman Brown & Co Ltd [1973] EA 358, the Court set out the familiar requirements for the grant of a temporary injunction.
23. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR), the Court of Appeal explained that a prima facie case is more than an arguable case. The material placed before the Court must disclose a right which appears to have been infringed so as to call for a rebuttal.
24. In Diamond Trust Bank Kenya Limited v Kaminara Agencies Limited & 2 others [2025] KECA 48 (KLR), the Court of Appeal stated that an interlocutory injunction must rest upon an underlying legal or equitable right capable of protection against the party sought to be restrained. Where the applicant lacks the requisite standing to challenge the chargee's statutory power of sale, the prima facie threshold cannot be sustained.
25. In the present case, the Applicants have not demonstrated such an enforceable right against the 1st Defendant. Their asserted beneficial interest in the property, even assuming it for present purposes, does not confer upon them the statutory standing necessary to restrain the charge.
26. The Applicants have raised other complaints concerning the charge and further charge, statutory notices, valuation, spousal consent and the loan account. It is unnecessary, for purposes of this application, to determine those matters. They cannot overcome the threshold issue of the Applicants' standing to invoke the statutory relief sought.
27. I therefore find that the Applicants have not established a prima facie case with a probability of success.
28. The upshot of the foregoing is that Plaintiffs' Notice of Motion dated 23rd September 2025, challenging the 1st Defendant's exercise of its statutory power of sale, is found to be without merit, and is hereby dismissed in its entirety.
29. The costs of the application shall be borne by the Plaintiffs/Applicants and are awarded to the 1st Defendant.
30. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. Before the Court is the Plaintiffs' Notice of Motion dated 23rd September 2025, principally seeking an interlocutory injunction restraining the 1st Defendant from exercising its statutory power of sale over Title Number Makueni/Konza South Block 1 (Marwa) 13, pending the hearing and determination of the suit. The Applicants further seek, among other reliefs, production of documents and accounts relating to the facilities secured by the suit property.
2. The application is founded on the Applicants' contention that the suit property forms part of the estate of the late Mutungi Maliti and that, although registered in the name of the 2nd Defendant, it is held by him in trust for the beneficiaries of the estate. They contend that the property was charged to the 1st Defendant without the authority or consent of the estate and its beneficiaries. They further challenge the validity of the charge and further charge, the statutory notices, the alleged spousal consent, the valuation and the amount claimed by the Bank.
3. The 1st Defendant opposes the application and maintains that it is entitled to realize its security following default. They challenge this Court’s jurisdiction, the Applicants’ locus standi, and assert that no prima facie case has been established against the sale of the property.
4. The 2nd Defendant, vide a Replying Affidavit and Grounds of Opposition both dated 22nd October 2025, denies that the property forms part of the estate. He asserts that he is its lawful and beneficial owner and denies holding it in trust. He nevertheless supports restraint of the Bank's realization process on grounds relating principally to the charge, statutory notices and loan account.
5. The 3rd Defendant takes a contrary position and supports the Applicants' assertion that the property belongs to the estate and was charged without the knowledge of the beneficiaries. The record further shows that he acknowledges that the Bank issued a ninety-day statutory notice over the property on 19th May 2025.
Analysis and Determination
6. Having considered the pleadings, affidavits and submissions, I find that the following issues arise for determination:
a) Whether this Court has jurisdiction to determine the application;
b) Whether the Applicants have locus standi to seek relief against the 1st Defendant's exercise of its statutory power of sale;
c) Whether the Applicants have established a prima facie case with a probability of success;
d) Whether the Applicants have satisfied the other requirements for the grant of an interlocutory injunction.
Whether this Court has jurisdiction to determine the application
7. The jurisdictional objection arises principally from the Applicants' assertion that the suit property belongs to the estate of the late Mutungi Maliti and that the 2nd Defendant holds it in trust. It is contended that questions concerning ownership and trust fall within the jurisdiction of the Environment and Land Court.
8. The immediate relief sought in the application, however, is directed at the 1st Defendant's exercise of its statutory power of sale as chargee.
9. In Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others [2017] KECA 79 (KLR), the Court of Appeal considered the jurisdictional boundary between the High Court and the Environment and Land Court in disputes concerning charges. It held that disputes concerning mortgages, charges, collection of dues and matters arising from the banker-customer relationship fall within the civil jurisdiction of the High Court.
10. The position was subsequently reaffirmed in Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others [2024] KECA 410 (KLR). The Court of Appeal held that a dispute whose object was to restrain a chargee from exercising its statutory power of sale did not, merely because it concerned charged land, become a dispute concerning the environment, use, occupation or title to land within the exclusive jurisdiction of the Environment and Land Court.
11. The present application is principally concerned with the realization of a charge and the exercise of the chargee's statutory remedies. I therefore find that this Court has jurisdiction to determine the application.
12. That finding does not require a determination of the competing claims of ownership or trust. Those questions are not necessary for resolving the present application.
Whether the Applicants have requisite locus standi
13. Section 103(1) of the Land Act identifies the persons who may apply for relief against the exercise by a chargee of the remedies contemplated under the Act. The provision includes the chargor, one or more joint chargors, a spouse of the chargor who was required to give consent to the creation of the charge but did not give consent, and the trustee in bankruptcy of the chargor.
14. In Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others [2024] KECA 410 (KLR), the Court of Appeal considered the standing of persons who were not parties to the charge. The Court held that persons who did not fall within the statutory categories contemplated under section 103 lacked locus standi to restrain or challenge the chargee's exercise of its statutory power of sale, and, importantly, that the third parties had no locus standi to sue for the injunctive relief sought.
15. The principle was reaffirmed in Diamond Trust Bank Kenya Limited v Kaminara Agencies Limited & 2 others [2025] KECA 48 (KLR). The Court of Appeal allowed the bank's appeal, set aside the injunction granted by the High Court and substituted an order dismissing the application. The case concerned a party who was not a party to the charge but sought to restrain the chargee's realization of the security.
16. The application of those principles to the present case is straightforward. Neither Applicant is the chargor. The 1st Applicant is the administratrix of the estate of the late Mutungi Maliti, while the 2nd Applicant is a beneficiary of that estate. Neither is a joint chargor, a spouse of the chargor within the meaning of section 103(1)(c), or the trustee in bankruptcy of the chargor.
17. I have considered the submission that the 1st Applicant, as administratrix, has a duty to protect property alleged to form part of the estate. That may be so in the administration of an estate. It does not, however, enlarge the statutory categories under section 103 of the Land Act.
18. The Applicants further contend that the property is beneficially owned by the estate. That claim is disputed. The 2nd Defendant denies the alleged trust and asserts ownership, while the 3rd Defendant supports the estate's position.
19. Whether that claim will ultimately succeed is not a matter for determination on this application. The material point is that the asserted beneficial interest does not place the Applicants within the statutory class entitled to seek relief against the chargee.
20. I accordingly find that the Applicants lack locus standi to seek an injunction restraining the 1st Defendant from exercising its statutory power of sale.
Whether the Applicants have established a prima facie case with a probability of success
21. The finding on locus is sufficient to dispose of the application. I nevertheless consider the first limb of the test for an interlocutory injunction.
22. The applicable principles are settled. In Giella v Cassman Brown & Co Ltd [1973] EA 358, the Court set out the familiar requirements for the grant of a temporary injunction.
23. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR), the Court of Appeal explained that a prima facie case is more than an arguable case. The material placed before the Court must disclose a right which appears to have been infringed so as to call for a rebuttal.
24. In Diamond Trust Bank Kenya Limited v Kaminara Agencies Limited & 2 others [2025] KECA 48 (KLR), the Court of Appeal stated that an interlocutory injunction must rest upon an underlying legal or equitable right capable of protection against the party sought to be restrained. Where the applicant lacks the requisite standing to challenge the chargee's statutory power of sale, the prima facie threshold cannot be sustained.
25. In the present case, the Applicants have not demonstrated such an enforceable right against the 1st Defendant. Their asserted beneficial interest in the property, even assuming it for present purposes, does not confer upon them the statutory standing necessary to restrain the charge.
26. The Applicants have raised other complaints concerning the charge and further charge, statutory notices, valuation, spousal consent and the loan account. It is unnecessary, for purposes of this application, to determine those matters. They cannot overcome the threshold issue of the Applicants' standing to invoke the statutory relief sought.
27. I therefore find that the Applicants have not established a prima facie case with a probability of success.
28. The upshot of the foregoing is that Plaintiffs' Notice of Motion dated 23rd September 2025, challenging the 1st Defendant's exercise of its statutory power of sale, is found to be without merit, and is hereby dismissed in its entirety.
29. The costs of the application shall be borne by the Plaintiffs/Applicants and are awarded to the 1st Defendant.
30. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent