' RULING
1. This Ruling relates to two applications filed by the Applicant, Willis Odhiambo Ouma , currently pending before this Court.
APPLICATION DATED 5TH MAY 2025
2. The first application, dated 5th May 2025, is brought pursuant to Sections 1A, 3, 3A, and 63(c) and (e) of the Civil Procedure Act, Cap 21 Laws of Kenya; Order 40 Rules 1, 2, and 8; and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010. The Applicant also invokes Sections 90, 96, 103, and 107 of the Land Act, No. 6 of 2012.
3. In the said application, the Applicant seeks the following reliefs:
(a) Spent.
(b) That pending the hearing and determination of this application inter-partes this Honourable Court be pleased to grant an order of injunction restraining the Defendants, their servants, auctioneers, licensees, agents or any other person acting on their behalf from howsoever advertising for sale, selling, auctioning, alienating, transferring, disposing, charging or further charging, evicting, managing, dispossessing or in any other way interfering with rights, ownership, proprietorship and legal entitlement of the Plaintiffs to L.R NO. 12565/29 IR NO. 35815 NYARI ESTATE NAIROBI.
(c) That pending the hearing and determination of this suit this Honourable Court be pleased to grant an order of injunction restraining the Defendants, their servants, auctioneers, licensees, agents or any other person acting on their behalf from howsoever advertising for sale, selling, auctioning, alienating, transferring, disposing, charging or further charging, evicting, managing, dispossessing or in any other way interfering with rights, ownership, proprietorship and legal entitlement of the Plaintiffs to L.R NO. 12565/29 IR NO. 35815 NYARI ESTATE NAIROBI.
(d) That this Honourable Court be pleased to issue such other equitable orders as it may deem fit.
(e) That the cost of this application be in the cause.
4. The application was supported by the affidavit of Willis Odhiambo Ouma , sworn on 5th May 2025. He stated that he had instituted the present proceedings by way of a Plaint dated 31st May 2019. It was subsequently amended on 10th March 2025, seeking various reliefs. The matter was pending before the Court. It had been certified ready for hearing following compliance by both parties, and was scheduled for directions on the application to amend the Plaint on 19th May 2025. The deponent averred that he had recently become aware that the Defendant had advertised the suit property for sale in the Daily Nation newspaper on 28th April 2025.
5. He asserted that he had never been served with the requisite statutory notices, including the 90-day or 40-day redemption notices, or any other notice relating to the intended auction. This was either by the Defendant or its appointed auctioneers. He further averred that since the delivery of the Court’s ruling on 29th May 2020, no valuation had been conducted on the suit property. That he had neither received a valuation report nor seen any valuer on the property for purposes of conducting such valuation. The deponent contended that he was in actual possession of the suit property, having lived there for over 20 years with his family. He stated that the property was their only place of residence, and its sale would have resulted in the Applicant and his family being rendered homeless.
APPLICATION DATED 16TH JUNE 2025
6. The second application, also filed by the Applicant, is dated 16 June 2025. It is brought under the provisions of Sections 1A, 3, 3A, and 63(c) and (e) of the Civil Procedure Act, Cap 21 Laws of Kenya; Order 40 Rules 1, 2, and 4, and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010; as well as Sections 97 and 103 of the Land Act, No. 6 of 2012.
7. In the said application, the Applicant seeks the following orders:
(a) Spent.
(b) THAT pending the hearing and determination of this Application, a temporary injunction be issued restraining the Respondents by themselves, their agents, or servants from completing the transfer, registration, or dealing in any manner whatsoever with all that parcel of land known as Title Number L.R NO. 12563/29 (IR 35815) House No. LE395 Red Hill Grove Nyari Estate situate within Nairobi.
(c) Spent.
(d) THAT pending the hearing and determination of this suit, a temporary injunction be issued restraining the Respondents by themselves, their agents, or servants from completing the transfer, registration, or dealing in any manner whatsoever with all that parcel of land known as Title Number L.R NO. 12563/29 (IR 35815) House No. L395 Red Hill Grove Nyari Estate situate within Nairobi.
(e) Spent.
(f) THAT the cost of this application be in the cause.
8. The application was supported by the affidavit of Willis Odhiambo Ouma , sworn on 16th June 2025. He deposed that he was the Plaintiff/Applicant in the matter and the registered proprietor of the suit property known as L.R. No. 12563/29 (IR 35815), House No. LE395, Red Hill Grove, Nyari Estate, Nairobi. He averred that the suit property had been advertised for public auction on 10th June 2025. Despite his efforts to engage the Respondent with a view to redeeming the loan account, the Respondent had kept making assurances up to the last minute. Only to eventually decline his requests to halt the auction. He stated that he had been informed of the sale of the suit property by one Angela, an officer of the Respondent, who had sent him a copy of the Memorandum of Sale via WhatsApp on 11th June 2025. It indicated that the property had been sold to one Karim Nazir Manji at a consideration of Kshs. 72,700,000/=. A copy of the Certificate of Sale and Memorandum of Sale was annexed to the affidavit and marked “WOO1”
9. The deponent asserted that the current open market value of the suit property was at least Kshs. 130,000,000/=, as reflected in the attached valuation report annexed and marked “WOO2”. He contended that the auction sale price of Kshs. 72,700,000/= represented approximately 55.9 percent of the market value, which fell far below the statutorily prescribed minimum of 75 percent under Section 97(2) of the Land Act. He therefore maintained that the Respondent, as chargee, had failed to take reasonable steps to obtain the best price reasonably attainable, contrary to its legal obligation. He further believed that the auction had been conducted negligently and without transparency, with no genuine effort made to expose the property to the market so as to attract fair and competitive bids. He attributed this to the conduct of the Respondent and urged that the purported purchaser, K arim Nazir Manji , be enjoined in the proceedings. This is in order to address the alleged irregularities and illegalities surrounding the sale.
10. The deponent maintained that he had a genuine and arguable case against both the Respondent and its agents in relation to the sale. He urged the Court to intervene and protect his proprietary interest pending the hearing and determination of the main suit. He concluded by stating that unless the Court granted the orders sought, he stood to suffer irreparable loss which could not be adequately remedied by an award of damages.
RESPONDENT’S CASE
11. The Respondent being the Bank/Chargee opposed the application dated 9th May 2025. This is through the Replying Affidavit of Angela Njeri , a Manager in the Recoveries Department of the Respondent, sworn on 9th May 2025. She averred that the affidavit was sworn based on her personal knowledge and information obtained from the Respondent’s records in relation to the subject matter of the suit.
12. Having read and understood the contents of the Notice of Motion Application dated 9th May 2025, the deponent responded that the application was merely an attempt to frustrate the Respondent’s lawful exercise of its statutory power of sale. This is notwithstanding the Applicant’s continued breach of contractual obligations through persistent default in repayment of the loan facility. She termed the application an abuse of the court process. The deponent stated that although the matter had been scheduled for hearing on several occasions, the Plaintiff consistently failed to prosecute the suit. This is all the while benefiting from temporary injunctive relief granted in 2022. This conduct led the Court to vacate the injunctive orders through an order issued on 13th February 2025. Upon discharge of those orders, the Respondent was at liberty to proceed with the realization of the charged property.
13. She asserted that the Applicant had not, at any point, engaged the Bank in good faith to propose a repayment plan or to settle the outstanding amount, noting that the last payment was made in January 2018. Owing to the Applicant’s inaction and continued default, the Respondent issued a 45-day Redemption Notice and Notification of Sale in accordance with the law. A copy of the Redemption Notice was annexed and marked AN-1. The deponent further stated that the same Applicant who failed to prosecute his case now sought to reinstate injunctive relief that had been lawfully discharged by the Court, without any demonstration of compliance with his obligations under the loan agreement. For clarity, she confirmed that as at 9th May 2025, the outstanding loan amount stood at Kshs. 32,457,483.46. A copy of the loan statement was annexed and marked AN-2.
14. In response to the Applicant’s contention that he was not served with the 90-day and 40-day statutory notices prior to the auction, the deponent stated that this issue had been conclusively determined. This was by the Ruling of Lady Justice M. Muiga i delivered on 29th May 2020, in which the Court affirmed that the statutory notices had been duly served. A copy of the said Ruling was annexed and marked AN-3. She added that, as advised by Counsel, statutory notices were only required to be issued once unless vitiated by a subsequent legal or factual event, which had not arisen in this case. Additionally, she confirmed that the suit property had been duly valued as required under the law, and a copy of the valuation report was annexed and marked AN-4.
15. The deponent noted that the Applicant had acknowledged having seen the advertisement of the scheduled public auction and had attached a copy thereof to his application. She concluded that the application constituted an abuse of Court process. This is because the Applicant, having fully benefited from the loan facility and subsequently defaulted, now sought the Court’s aid to avoid his contractual obligations.
16. Further, Angela Njeri has sworn a Replying Affidavit sworn on 27th June, 2025. It is in response to the second Application dated 16th June, 2025. She depones that the subject property was sold by way of a public auction on 10th June, 2025 to one Karim Nazir Manji . That upon the fall of the hammer the right of redemption was extinguished.
17. The Respondent depones that the rights of the Interested Party as a purchaser are now protected under Section 101 of the Land Act. That the Plaintiff’s claim can only be limited to damages and not to the nature of the reliefs now sought in the Motion under consideration.
18. That the Plaintiff only has himself to blame. He slept on his injunction and neither prosecuted the suit nor paid the debt.
19. On the issue of valuation, it is submitted that the property had been valued severally between 2013 and 2025 when it was valued at Kshs. 85,000,000/=. It was also deponed that whereas the forced sale value was indicated at Kshs.63,750,000/= the property was sold for Kshs.72,700,000/=.
20. The Respondent maintains that the Plaintiff’s case is overtaken by events and the application is an abuse of the Court process.
INTERESTED PARTY’S CASE
21. The Interested Party’s response to the Notice of Motion dated 16th June 2025 was set out in the Replying Affidavit of Karim Manji , sworn on 1st July 2025. He averred that he became aware of the intended sale of the property known as L.R. No. 12563/29 (I.R. 35815), House No. L395, Red Hill Grove, Nyari Estate, Nairobi (the “suit property”) through advertisements. This was through the public auction advertisements published in the Daily Nation newspaper on 19th May 2025 and again on 3rd June 2025, for an auction scheduled to take place on 10th June 2025 at 11:00 a.m. He annexed copies of the said advertisements marked “KM-1”.
22. The advertisements outlined the conditions of sale, including that:
a) Interested bidders were required to pay a bidding deposit of Kshs. 5,000,000 by banker’s cheque or cash prior to the auction;
b) The successful bidder was to pay ten percent (10 percent) of the purchase price at the fall of the hammer;
c) The balance of the purchase price was to be paid within ninety (90) days from the auction date.
23. On 10th June 2025, he attended the auction and in compliance with the sale conditions, paid a bidding deposit of Kshs. 5,000,000 via bankers’ cheques. He annexed copies of the cheques as “KM-2”. Having complied with the conditions, he was permitted to participate in the auction, during which he emerged as the highest bidder with a bid of Kshs. 72,700,000. The Auctioneer accepted the bid, and he immediately paid a further sum of Kshs. 2,270,000, completing the 10 percent deposit of the purchase price. Evidence of this remittance was annexed and marked “KM-3”. Following this, he was issued with the Memorandum and Certificate of Sale, both of which he duly executed. These documents were annexed and marked “KM-4” and “KM-5”. Subsequently, on 26th June 2025, he completed payment of the outstanding balance of Kshs. 65,430,000 to the Respondent (Chargee), within the required 90-day period. RTGS confirmations of the said payment were annexed and marked “KM-6”. Thereafter, on behalf of his company, Premium Leasing Limited , he executed the transfer instruments dated 30th June 2025 and forwarded them to the Respondent, who in turn executed and released the securities via a letter dated 1st July 2025. These documents were annexed as “KM-7” and “KM-8”.
24. He confirmed that registration of the transfer was ongoing and that his advocates were in the process of procuring the title documents. The deponent further averred that Section 99 of the Land Act, 2012 afforded protection to a bona fide purchaser at a statutory sale from liability, even where certain irregularities might be alleged post-sale. He stated that prior to participating in the auction, he had received assurance that all requisite statutory notices had been duly served upon the chargor, and that the auction had been conducted in accordance with the law.
25. He contended that any procedural irregularity or omission attributable to the auctioneer was curable under Section 26 of the Auctioneers Act and did not invalidate the auction or affect his proprietary interest in the suit property. The deponent maintained that the procedural objections raised by the Applicant could not override the sanctity of his lawfully acquired interest in the property, which had crystallised upon the fall of the hammer at the public auction.
26. He asserted that he had acted in utmost good faith throughout the transaction, paid the fair market value of the suit property, and fully complied with all legal and procedural requirements. Accordingly, he invoked the doctrine of protection for a bona fide purchaser for value without notice. He expressed his readiness and willingness to take vacant possession of the suit property and decried any continued obstruction as a violation of his constitutionally protected right to property under Article 40 of the Constitution.
27. The deponent further argued that the prayers sought in the Applicant’s Notice of Motion dated 16th June 2025 were overly broad and would unduly prejudice him, despite his not being a party to the underlying dispute between the Applicant and the Respondent. He contended that any potential prejudice or loss that might be suffered by the Applicant was adequately compensable by way of damages. That the nature of the property did not warrant the grant of injunctive relief. He emphasized that no fraud, misrepresentation, or illegality had been alleged or proven against him personally so as to justify the setting aside of the sale or the issuance of equitable relief in favour of the Applicant. Further, the deponent noted that the Applicant had not disputed the existence of the debt that formed the basis for the statutory sale and therefore lacked the requisite clean hands to seek equitable intervention from the Court. He contended that the Applicant’s Application failed to meet the threshold for the grant of an injunction, disclosed no prima facie case with a probability of success. That the balance of convenience clearly favoured upholding the validity of the concluded public auction in the interest of commercial certainty and finality.
APPLICANT’S SUPPLEMENTARY AFFIDAVIT
28. In the supplementary affidavit of Willis Odhiambo Ouma sworn on 11th July 2025, he averred that he was the Plaintiff/Applicant in the present proceedings. That he was therefore competent to swear the affidavit in further support of the application dated 16th June 2025 and in response to the Replying Affidavits filed by the Respondent and the Interested Party. He deposed that at the time of instituting the suit, he had simultaneously filed an application dated 31st May 2019 seeking, inter alia, an order compelling the Defendant to furnish full loan statements for the accounts in question. On 20th May 2020, the Court had directed that the full loan statement for his account be provided. However, the Defendant failed to comply with this order until 14th June 2023, when Hon. Justice Mong’are intervened and issued a further order requiring the Defendant to furnish the said statements.
29. The Plaintiff’s Advocates had subsequently served the Defendant directly with the order and a covering letter urging compliance. Copies of both the Court order and the accompanying letter were annexed and marked as “WOO3A” and “WOO3B.” Despite service of the said order, the Defendant did not provide the required loan statements until they served the trial bundle dated 29th November 2024 on 9th January 2025. A duly received copy of the bundle was annexed and marked “WOO4.”
30. He asserted that it was therefore incorrect for the Defendant to allege that the delay in prosecuting the matter was solely attributable to the Plaintiff. He contended that the matter could not proceed to hearing without the loan statements, which were necessary for IRAC to prepare an interest recalculation report intended to be relied upon at trial. He further contended that the Defendant’s assertion that he was deliberately delaying the hearing was misleading. He countered that the Defendant had intentionally withheld the documents crucial to the Plaintiff’s case, only to release them and promptly move to discharge the interim orders thereafter.
31. The Plaintiff believed that the Court had not had the benefit of the full factual context when it discharged the interim orders and that it was only fair and just that the said orders be reinstated pending the hearing and final determination of the matter. He also challenged the valuation forming the basis of the alleged auction. He deponed that the property had been worth over Kshs. 100 million at the time of filing suit, a fact stated in the pleadings, and that the auction price was substantially below market value.
32. He further deposed that, in addition to all regular loan repayments, he had made various incidental payments to the Defendant that were not accounted for in the computation of the outstanding amount. He stated that he had, in total, paid over Kshs. 25,906,029.88 to the Bank. A breakdown of these payments was annexed and marked “WOO5.” Based on the IRAC report, he averred that, at worst, the outstanding balance would be Kshs. 13,227,960.31, which should further be reduced by a recent payment of Kshs. 1,000,000. A copy of the IRAC report was annexed and marked “WOO6.”
33. He also noted that the Replying Affidavit of the Interested Party revealed that third parties were allegedly involved in the payment of the purchase price. That the transfer was being effected in favour of a different entity, Premium Leasing Limited , which had not participated in the auction and had not signed a memorandum of sale or made any payments. He averred that the memorandum of sale and all related agreements lacked any nominee or assignment clauses. This, he contended, pointed to the fraudulent nature of the purported transaction.
34. In light of the foregoing, he urged the Honourable Court to allow the application dated 16th June 2025, set aside the impugned auction, and afford him the opportunity to prosecute his case on merit to final determination.
ISSUES FOR DETERMINATION
35. The Court has carefully considered the parties’ affidavits and the respective submissions filed herein. The Court commends all parties for their diligence and industry in the presentation of their respective cases. Arising therefrom, the Court finds that the following issue falls for determination:
(a) Whether the Applicant is entitled to the injunctive reliefs sought in the two applications, including setting aside of the auction and nullification of the sale.
ANALYSIS
36. In the main, the two Applications seek injunctive orders against the Defendant. What was initially sought was an injunction to restrain the Bank from exercising its Statutory power of sale. The second application seeks to restrain the Bank from completing the transfer of land, after the exercise of statutory power of sale has already taken place.
1. The leading case in granting injunctions is Giella Vs Cassman Brown and Co Ltd (1973) E A 358 .
2. It established three (3) criteria to be considered before granting an injunction, namely;
“First an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly if the court is in doubt, it will decide an application on the balance of convenience.”
3. The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen and 2 others [2014] KECA 606 (KLR) stated that these three (3) ingredients are to be proved/demonstrated sequentially.
“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) ally 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.”
4. As to what constitutes a prima facie case, the Court refers to Mrao Ltd v First American Bank of Kenya Ltd and 2 others [2003] KECA 175 (KLR) where the Court of Appeal stated as follows; -
“But as I earlier endeavoured to show, and I cited ample authority for it, 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 applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”
37. As the two applications were argued together, the Court will consider them together in this Ruling and deliver a single decision.
38. The Court hears the Plaintiff to complain that the initial injunction that it had enjoyed in this matter was vacated by the Court. That perhaps the Court should look at this case with different lenses and reinstate the injunction. The Plaintiff would rather have the Court believe that it was not engaged in any delaying tactics, to warrant the discharge of the interim injunction, pending the trial.
39. The Plaintiff could not purport that the suit was not ready for hearing while failing to discharge the fundamental duty of filing and exchanging issues and witness statements. It was incumbent upon the Plaintiff to ensure that their witness statements were filed and served.
40. This lack of initiative extended further, as the Plaintiff did not move the Court through any formal application supported by audited statements or documentary evidence to demonstrate improper charges or illegality on the part of the Respondent. This conduct did not align with the overriding objective of expediting the fair and just resolution of disputes. It was also necessary to emphasize that the grant of an injunction did not signify a determination on the merits, nor did it preclude the discharge of the same. The Plaintiff remained under a continuing duty to act in good faith and to diligently prosecute the suit to its conclusion, particularly in view of the interim injunctive relief that had been granted.
41. The observations made in Harrishchandra Bhovanbhai Jobanputra and Another v Paramount Universal Bank Limited and 3 Others [2014] KEHC 1480 (KLR) are apt in this regard. The Court in that case held that:
“I should state that a litigant who obtains an injunction to restrain the sale of the suit property especially on the basis that there were some irregularities in or the statutory notices did not comply with the law, and uses the injunction not to repay the loan risks the injunction being discharged. When such conduct is exhibited, I think it is a stealth post injunction behaviour that should be a ground to discharge an injunction, because it will be an abuse of the purpose for which the injunction was granted.”
42. It is trite that where a Plaintiff unreasonably delays in taking essential procedural steps, such as filing requisite documents, effecting service upon the Defendant, or setting down the matter for hearing, such conduct amounts to a failure to diligently prosecute the suit. Equally, where a party fails to present sufficient evidence in support of an application, including for injunctive relief, the Court is entitled to infer a lack of seriousness or diligence. In the present case, the Court declines to entertain the Plaintiff’s request for reinstatement of the vacated injunctive orders. The application appears calculated to frustrate the Respondent’s legitimate efforts to realize the security and recover the debt lawfully due.
43. The Applicant submits that compliance with statutory prerequisites is mandatory before any auction can be undertaken. It is the Plaintiff’s contention that he was never served with the requisite statutory notices under the Land Act. This issue, the Plaintiff avers, has not been conclusively determined in any prior proceedings. The Applicant maintains that the reference made by Justice M. Muigai in her ruling dated 29th May 2020 was obiter and did not constitute a definitive finding that all statutory notices were duly served.
44. Conversely, the Respondent submits that the Plaintiff failed to meet his obligations under the charge instrument, prompting the issuance of several statutory notices in accordance with the Land Act. These notices were served via registered post, as prescribed by law, and this fact was confirmed by the Court (Justice M. Muigai) in the Ruling delivered on 29th May 2020. The said Ruling has not been set aside or appealed, and service of the notices is therefore no longer a live issue.
45. This Court has considered and perused the said Ruling and finds that the Plaintiff is seeking a re-litigation of a matter that has already been determined. The Court views this as an impermissible attempt to reopen settled issues. Any dissatisfaction with the Ruling of 29th May 2020 ought properly to be pursued in the Court of Appeal.
46. It is not in dispute that the Applicant obtained a credit facility from the Respondent. Equally, the Applicant does not deny that it is in arrears in the repayment of the said facility. While the Applicant seeks to challenge the arrears position by reference to the IRAC report, the Court finds the same insufficient to displace the Respondent’s position at this interlocutory stage. Further, the Applicant does not contest that the Respondent issued the requisite statutory notices pursuant to the exercise of its statutory power of sale.
47. The core of the Plaintiff’s present grievance lies in the allegation that the Respondent failed to comply with Section 97 of the Land Act by grossly undervaluing the property prior to the exercise of the power of sale. The Applicant contends that this amounted to a breach of the statutory duty of care to obtain the best price reasonably obtainable at the time of sale. The governing law on forced sale valuation is found under Section 97(1) and (2) of the Land Act, which provides as follows:
(1) A charge who exercises a power to sell the charged land, including the exercise of the power to sell in pursuance of a court, owes a duty of care to the charger, any guarantor of the whole or any part of the sums advanced to the charger, any charge under a subsequent charge or under a lieu to obtain the best price reasonably obtainable at the time of sale.
(2) A charge shall, before exercising the right of sale, ensure that a forced sale valuation is undertaken by a valuer.
48. On this issue, the Court is invited to determine whether the Respondent discharged its duty under Section 97 by commissioning a proper forced sale valuation. The statutory framework requires a valuation to be conducted by a qualified valuer and the best price reasonably obtainable to be secured.
49. A valuation undertaken for purposes of sale of charged property must be carried out in good faith, by a duly qualified and competent
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1. This Ruling relates to two applications filed by the Applicant, Willis Odhiambo Ouma , currently pending before this Court.
APPLICATION DATED 5TH MAY 2025
2. The first application, dated 5th May 2025, is brought pursuant to Sections 1A, 3, 3A, and 63(c) and (e) of the Civil Procedure Act, Cap 21 Laws of Kenya; Order 40 Rules 1, 2, and 8; and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010. The Applicant also invokes Sections 90, 96, 103, and 107 of the Land Act, No. 6 of 2012.
3. In the said application, the Applicant seeks the following reliefs:
(a) Spent.
(b) That pending the hearing and determination of this application inter-partes this Honourable Court be pleased to grant an order of injunction restraining the Defendants, their servants, auctioneers, licensees, agents or any other person acting on their behalf from howsoever advertising for sale, selling, auctioning, alienating, transferring, disposing, charging or further charging, evicting, managing, dispossessing or in any other way interfering with rights, ownership, proprietorship and legal entitlement of the Plaintiffs to L.R NO. 12565/29 IR NO. 35815 NYARI ESTATE NAIROBI.
(c) That pending the hearing and determination of this suit this Honourable Court be pleased to grant an order of injunction restraining the Defendants, their servants, auctioneers, licensees, agents or any other person acting on their behalf from howsoever advertising for sale, selling, auctioning, alienating, transferring, disposing, charging or further charging, evicting, managing, dispossessing or in any other way interfering with rights, ownership, proprietorship and legal entitlement of the Plaintiffs to L.R NO. 12565/29 IR NO. 35815 NYARI ESTATE NAIROBI.
(d) That this Honourable Court be pleased to issue such other equitable orders as it may deem fit.
(e) That the cost of this application be in the cause.
4. The application was supported by the affidavit of Willis Odhiambo Ouma , sworn on 5th May 2025. He stated that he had instituted the present proceedings by way of a Plaint dated 31st May 2019. It was subsequently amended on 10th March 2025, seeking various reliefs. The matter was pending before the Court. It had been certified ready for hearing following compliance by both parties, and was scheduled for directions on the application to amend the Plaint on 19th May 2025. The deponent averred that he had recently become aware that the Defendant had advertised the suit property for sale in the Daily Nation newspaper on 28th April 2025.
5. He asserted that he had never been served with the requisite statutory notices, including the 90-day or 40-day redemption notices, or any other notice relating to the intended auction. This was either by the Defendant or its appointed auctioneers. He further averred that since the delivery of the Court’s ruling on 29th May 2020, no valuation had been conducted on the suit property. That he had neither received a valuation report nor seen any valuer on the property for purposes of conducting such valuation. The deponent contended that he was in actual possession of the suit property, having lived there for over 20 years with his family. He stated that the property was their only place of residence, and its sale would have resulted in the Applicant and his family being rendered homeless.
APPLICATION DATED 16TH JUNE 2025
6. The second application, also filed by the Applicant, is dated 16 June 2025. It is brought under the provisions of Sections 1A, 3, 3A, and 63(c) and (e) of the Civil Procedure Act, Cap 21 Laws of Kenya; Order 40 Rules 1, 2, and 4, and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010; as well as Sections 97 and 103 of the Land Act, No. 6 of 2012.
7. In the said application, the Applicant seeks the following orders:
(a) Spent.
(b) THAT pending the hearing and determination of this Application, a temporary injunction be issued restraining the Respondents by themselves, their agents, or servants from completing the transfer, registration, or dealing in any manner whatsoever with all that parcel of land known as Title Number L.R NO. 12563/29 (IR 35815) House No. LE395 Red Hill Grove Nyari Estate situate within Nairobi.
(c) Spent.
(d) THAT pending the hearing and determination of this suit, a temporary injunction be issued restraining the Respondents by themselves, their agents, or servants from completing the transfer, registration, or dealing in any manner whatsoever with all that parcel of land known as Title Number L.R NO. 12563/29 (IR 35815) House No. L395 Red Hill Grove Nyari Estate situate within Nairobi.
(e) Spent.
(f) THAT the cost of this application be in the cause.
8. The application was supported by the affidavit of Willis Odhiambo Ouma , sworn on 16th June 2025. He deposed that he was the Plaintiff/Applicant in the matter and the registered proprietor of the suit property known as L.R. No. 12563/29 (IR 35815), House No. LE395, Red Hill Grove, Nyari Estate, Nairobi. He averred that the suit property had been advertised for public auction on 10th June 2025. Despite his efforts to engage the Respondent with a view to redeeming the loan account, the Respondent had kept making assurances up to the last minute. Only to eventually decline his requests to halt the auction. He stated that he had been informed of the sale of the suit property by one Angela, an officer of the Respondent, who had sent him a copy of the Memorandum of Sale via WhatsApp on 11th June 2025. It indicated that the property had been sold to one Karim Nazir Manji at a consideration of Kshs. 72,700,000/=. A copy of the Certificate of Sale and Memorandum of Sale was annexed to the affidavit and marked “WOO1”
9. The deponent asserted that the current open market value of the suit property was at least Kshs. 130,000,000/=, as reflected in the attached valuation report annexed and marked “WOO2”. He contended that the auction sale price of Kshs. 72,700,000/= represented approximately 55.9 percent of the market value, which fell far below the statutorily prescribed minimum of 75 percent under Section 97(2) of the Land Act. He therefore maintained that the Respondent, as chargee, had failed to take reasonable steps to obtain the best price reasonably attainable, contrary to its legal obligation. He further believed that the auction had been conducted negligently and without transparency, with no genuine effort made to expose the property to the market so as to attract fair and competitive bids. He attributed this to the conduct of the Respondent and urged that the purported purchaser, K arim Nazir Manji , be enjoined in the proceedings. This is in order to address the alleged irregularities and illegalities surrounding the sale.
10. The deponent maintained that he had a genuine and arguable case against both the Respondent and its agents in relation to the sale. He urged the Court to intervene and protect his proprietary interest pending the hearing and determination of the main suit. He concluded by stating that unless the Court granted the orders sought, he stood to suffer irreparable loss which could not be adequately remedied by an award of damages.
RESPONDENT’S CASE
11. The Respondent being the Bank/Chargee opposed the application dated 9th May 2025. This is through the Replying Affidavit of Angela Njeri , a Manager in the Recoveries Department of the Respondent, sworn on 9th May 2025. She averred that the affidavit was sworn based on her personal knowledge and information obtained from the Respondent’s records in relation to the subject matter of the suit.
12. Having read and understood the contents of the Notice of Motion Application dated 9th May 2025, the deponent responded that the application was merely an attempt to frustrate the Respondent’s lawful exercise of its statutory power of sale. This is notwithstanding the Applicant’s continued breach of contractual obligations through persistent default in repayment of the loan facility. She termed the application an abuse of the court process. The deponent stated that although the matter had been scheduled for hearing on several occasions, the Plaintiff consistently failed to prosecute the suit. This is all the while benefiting from temporary injunctive relief granted in 2022. This conduct led the Court to vacate the injunctive orders through an order issued on 13th February 2025. Upon discharge of those orders, the Respondent was at liberty to proceed with the realization of the charged property.
13. She asserted that the Applicant had not, at any point, engaged the Bank in good faith to propose a repayment plan or to settle the outstanding amount, noting that the last payment was made in January 2018. Owing to the Applicant’s inaction and continued default, the Respondent issued a 45-day Redemption Notice and Notification of Sale in accordance with the law. A copy of the Redemption Notice was annexed and marked AN-1. The deponent further stated that the same Applicant who failed to prosecute his case now sought to reinstate injunctive relief that had been lawfully discharged by the Court, without any demonstration of compliance with his obligations under the loan agreement. For clarity, she confirmed that as at 9th May 2025, the outstanding loan amount stood at Kshs. 32,457,483.46. A copy of the loan statement was annexed and marked AN-2.
14. In response to the Applicant’s contention that he was not served with the 90-day and 40-day statutory notices prior to the auction, the deponent stated that this issue had been conclusively determined. This was by the Ruling of Lady Justice M. Muiga i delivered on 29th May 2020, in which the Court affirmed that the statutory notices had been duly served. A copy of the said Ruling was annexed and marked AN-3. She added that, as advised by Counsel, statutory notices were only required to be issued once unless vitiated by a subsequent legal or factual event, which had not arisen in this case. Additionally, she confirmed that the suit property had been duly valued as required under the law, and a copy of the valuation report was annexed and marked AN-4.
15. The deponent noted that the Applicant had acknowledged having seen the advertisement of the scheduled public auction and had attached a copy thereof to his application. She concluded that the application constituted an abuse of Court process. This is because the Applicant, having fully benefited from the loan facility and subsequently defaulted, now sought the Court’s aid to avoid his contractual obligations.
16. Further, Angela Njeri has sworn a Replying Affidavit sworn on 27th June, 2025. It is in response to the second Application dated 16th June, 2025. She depones that the subject property was sold by way of a public auction on 10th June, 2025 to one Karim Nazir Manji . That upon the fall of the hammer the right of redemption was extinguished.
17. The Respondent depones that the rights of the Interested Party as a purchaser are now protected under Section 101 of the Land Act. That the Plaintiff’s claim can only be limited to damages and not to the nature of the reliefs now sought in the Motion under consideration.
18. That the Plaintiff only has himself to blame. He slept on his injunction and neither prosecuted the suit nor paid the debt.
19. On the issue of valuation, it is submitted that the property had been valued severally between 2013 and 2025 when it was valued at Kshs. 85,000,000/=. It was also deponed that whereas the forced sale value was indicated at Kshs.63,750,000/= the property was sold for Kshs.72,700,000/=.
20. The Respondent maintains that the Plaintiff’s case is overtaken by events and the application is an abuse of the Court process.
INTERESTED PARTY’S CASE
21. The Interested Party’s response to the Notice of Motion dated 16th June 2025 was set out in the Replying Affidavit of Karim Manji , sworn on 1st July 2025. He averred that he became aware of the intended sale of the property known as L.R. No. 12563/29 (I.R. 35815), House No. L395, Red Hill Grove, Nyari Estate, Nairobi (the “suit property”) through advertisements. This was through the public auction advertisements published in the Daily Nation newspaper on 19th May 2025 and again on 3rd June 2025, for an auction scheduled to take place on 10th June 2025 at 11:00 a.m. He annexed copies of the said advertisements marked “KM-1”.
22. The advertisements outlined the conditions of sale, including that:
a) Interested bidders were required to pay a bidding deposit of Kshs. 5,000,000 by banker’s cheque or cash prior to the auction;
b) The successful bidder was to pay ten percent (10 percent) of the purchase price at the fall of the hammer;
c) The balance of the purchase price was to be paid within ninety (90) days from the auction date.
23. On 10th June 2025, he attended the auction and in compliance with the sale conditions, paid a bidding deposit of Kshs. 5,000,000 via bankers’ cheques. He annexed copies of the cheques as “KM-2”. Having complied with the conditions, he was permitted to participate in the auction, during which he emerged as the highest bidder with a bid of Kshs. 72,700,000. The Auctioneer accepted the bid, and he immediately paid a further sum of Kshs. 2,270,000, completing the 10 percent deposit of the purchase price. Evidence of this remittance was annexed and marked “KM-3”. Following this, he was issued with the Memorandum and Certificate of Sale, both of which he duly executed. These documents were annexed and marked “KM-4” and “KM-5”. Subsequently, on 26th June 2025, he completed payment of the outstanding balance of Kshs. 65,430,000 to the Respondent (Chargee), within the required 90-day period. RTGS confirmations of the said payment were annexed and marked “KM-6”. Thereafter, on behalf of his company, Premium Leasing Limited , he executed the transfer instruments dated 30th June 2025 and forwarded them to the Respondent, who in turn executed and released the securities via a letter dated 1st July 2025. These documents were annexed as “KM-7” and “KM-8”.
24. He confirmed that registration of the transfer was ongoing and that his advocates were in the process of procuring the title documents. The deponent further averred that Section 99 of the Land Act, 2012 afforded protection to a bona fide purchaser at a statutory sale from liability, even where certain irregularities might be alleged post-sale. He stated that prior to participating in the auction, he had received assurance that all requisite statutory notices had been duly served upon the chargor, and that the auction had been conducted in accordance with the law.
25. He contended that any procedural irregularity or omission attributable to the auctioneer was curable under Section 26 of the Auctioneers Act and did not invalidate the auction or affect his proprietary interest in the suit property. The deponent maintained that the procedural objections raised by the Applicant could not override the sanctity of his lawfully acquired interest in the property, which had crystallised upon the fall of the hammer at the public auction.
26. He asserted that he had acted in utmost good faith throughout the transaction, paid the fair market value of the suit property, and fully complied with all legal and procedural requirements. Accordingly, he invoked the doctrine of protection for a bona fide purchaser for value without notice. He expressed his readiness and willingness to take vacant possession of the suit property and decried any continued obstruction as a violation of his constitutionally protected right to property under Article 40 of the Constitution.
27. The deponent further argued that the prayers sought in the Applicant’s Notice of Motion dated 16th June 2025 were overly broad and would unduly prejudice him, despite his not being a party to the underlying dispute between the Applicant and the Respondent. He contended that any potential prejudice or loss that might be suffered by the Applicant was adequately compensable by way of damages. That the nature of the property did not warrant the grant of injunctive relief. He emphasized that no fraud, misrepresentation, or illegality had been alleged or proven against him personally so as to justify the setting aside of the sale or the issuance of equitable relief in favour of the Applicant. Further, the deponent noted that the Applicant had not disputed the existence of the debt that formed the basis for the statutory sale and therefore lacked the requisite clean hands to seek equitable intervention from the Court. He contended that the Applicant’s Application failed to meet the threshold for the grant of an injunction, disclosed no prima facie case with a probability of success. That the balance of convenience clearly favoured upholding the validity of the concluded public auction in the interest of commercial certainty and finality.
APPLICANT’S SUPPLEMENTARY AFFIDAVIT
28. In the supplementary affidavit of Willis Odhiambo Ouma sworn on 11th July 2025, he averred that he was the Plaintiff/Applicant in the present proceedings. That he was therefore competent to swear the affidavit in further support of the application dated 16th June 2025 and in response to the Replying Affidavits filed by the Respondent and the Interested Party. He deposed that at the time of instituting the suit, he had simultaneously filed an application dated 31st May 2019 seeking, inter alia, an order compelling the Defendant to furnish full loan statements for the accounts in question. On 20th May 2020, the Court had directed that the full loan statement for his account be provided. However, the Defendant failed to comply with this order until 14th June 2023, when Hon. Justice Mong’are intervened and issued a further order requiring the Defendant to furnish the said statements.
29. The Plaintiff’s Advocates had subsequently served the Defendant directly with the order and a covering letter urging compliance. Copies of both the Court order and the accompanying letter were annexed and marked as “WOO3A” and “WOO3B.” Despite service of the said order, the Defendant did not provide the required loan statements until they served the trial bundle dated 29th November 2024 on 9th January 2025. A duly received copy of the bundle was annexed and marked “WOO4.”
30. He asserted that it was therefore incorrect for the Defendant to allege that the delay in prosecuting the matter was solely attributable to the Plaintiff. He contended that the matter could not proceed to hearing without the loan statements, which were necessary for IRAC to prepare an interest recalculation report intended to be relied upon at trial. He further contended that the Defendant’s assertion that he was deliberately delaying the hearing was misleading. He countered that the Defendant had intentionally withheld the documents crucial to the Plaintiff’s case, only to release them and promptly move to discharge the interim orders thereafter.
31. The Plaintiff believed that the Court had not had the benefit of the full factual context when it discharged the interim orders and that it was only fair and just that the said orders be reinstated pending the hearing and final determination of the matter. He also challenged the valuation forming the basis of the alleged auction. He deponed that the property had been worth over Kshs. 100 million at the time of filing suit, a fact stated in the pleadings, and that the auction price was substantially below market value.
32. He further deposed that, in addition to all regular loan repayments, he had made various incidental payments to the Defendant that were not accounted for in the computation of the outstanding amount. He stated that he had, in total, paid over Kshs. 25,906,029.88 to the Bank. A breakdown of these payments was annexed and marked “WOO5.” Based on the IRAC report, he averred that, at worst, the outstanding balance would be Kshs. 13,227,960.31, which should further be reduced by a recent payment of Kshs. 1,000,000. A copy of the IRAC report was annexed and marked “WOO6.”
33. He also noted that the Replying Affidavit of the Interested Party revealed that third parties were allegedly involved in the payment of the purchase price. That the transfer was being effected in favour of a different entity, Premium Leasing Limited , which had not participated in the auction and had not signed a memorandum of sale or made any payments. He averred that the memorandum of sale and all related agreements lacked any nominee or assignment clauses. This, he contended, pointed to the fraudulent nature of the purported transaction.
34. In light of the foregoing, he urged the Honourable Court to allow the application dated 16th June 2025, set aside the impugned auction, and afford him the opportunity to prosecute his case on merit to final determination.
ISSUES FOR DETERMINATION
35. The Court has carefully considered the parties’ affidavits and the respective submissions filed herein. The Court commends all parties for their diligence and industry in the presentation of their respective cases. Arising therefrom, the Court finds that the following issue falls for determination:
(a) Whether the Applicant is entitled to the injunctive reliefs sought in the two applications, including setting aside of the auction and nullification of the sale.
ANALYSIS
36. In the main, the two Applications seek injunctive orders against the Defendant. What was initially sought was an injunction to restrain the Bank from exercising its Statutory power of sale. The second application seeks to restrain the Bank from completing the transfer of land, after the exercise of statutory power of sale has already taken place.
1. The leading case in granting injunctions is Giella Vs Cassman Brown and Co Ltd (1973) E A 358 .
2. It established three (3) criteria to be considered before granting an injunction, namely;
“First an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly if the court is in doubt, it will decide an application on the balance of convenience.”
3. The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen and 2 others [2014] KECA 606 (KLR) stated that these three (3) ingredients are to be proved/demonstrated sequentially.
“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) ally 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.”
4. As to what constitutes a prima facie case, the Court refers to Mrao Ltd v First American Bank of Kenya Ltd and 2 others [2003] KECA 175 (KLR) where the Court of Appeal stated as follows; -
“But as I earlier endeavoured to show, and I cited ample authority for it, 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 applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”
37. As the two applications were argued together, the Court will consider them together in this Ruling and deliver a single decision.
38. The Court hears the Plaintiff to complain that the initial injunction that it had enjoyed in this matter was vacated by the Court. That perhaps the Court should look at this case with different lenses and reinstate the injunction. The Plaintiff would rather have the Court believe that it was not engaged in any delaying tactics, to warrant the discharge of the interim injunction, pending the trial.
39. The Plaintiff could not purport that the suit was not ready for hearing while failing to discharge the fundamental duty of filing and exchanging issues and witness statements. It was incumbent upon the Plaintiff to ensure that their witness statements were filed and served.
40. This lack of initiative extended further, as the Plaintiff did not move the Court through any formal application supported by audited statements or documentary evidence to demonstrate improper charges or illegality on the part of the Respondent. This conduct did not align with the overriding objective of expediting the fair and just resolution of disputes. It was also necessary to emphasize that the grant of an injunction did not signify a determination on the merits, nor did it preclude the discharge of the same. The Plaintiff remained under a continuing duty to act in good faith and to diligently prosecute the suit to its conclusion, particularly in view of the interim injunctive relief that had been granted.
41. The observations made in Harrishchandra Bhovanbhai Jobanputra and Another v Paramount Universal Bank Limited and 3 Others [2014] KEHC 1480 (KLR) are apt in this regard. The Court in that case held that:
“I should state that a litigant who obtains an injunction to restrain the sale of the suit property especially on the basis that there were some irregularities in or the statutory notices did not comply with the law, and uses the injunction not to repay the loan risks the injunction being discharged. When such conduct is exhibited, I think it is a stealth post injunction behaviour that should be a ground to discharge an injunction, because it will be an abuse of the purpose for which the injunction was granted.”
42. It is trite that where a Plaintiff unreasonably delays in taking essential procedural steps, such as filing requisite documents, effecting service upon the Defendant, or setting down the matter for hearing, such conduct amounts to a failure to diligently prosecute the suit. Equally, where a party fails to present sufficient evidence in support of an application, including for injunctive relief, the Court is entitled to infer a lack of seriousness or diligence. In the present case, the Court declines to entertain the Plaintiff’s request for reinstatement of the vacated injunctive orders. The application appears calculated to frustrate the Respondent’s legitimate efforts to realize the security and recover the debt lawfully due.
43. The Applicant submits that compliance with statutory prerequisites is mandatory before any auction can be undertaken. It is the Plaintiff’s contention that he was never served with the requisite statutory notices under the Land Act. This issue, the Plaintiff avers, has not been conclusively determined in any prior proceedings. The Applicant maintains that the reference made by Justice M. Muigai in her ruling dated 29th May 2020 was obiter and did not constitute a definitive finding that all statutory notices were duly served.
44. Conversely, the Respondent submits that the Plaintiff failed to meet his obligations under the charge instrument, prompting the issuance of several statutory notices in accordance with the Land Act. These notices were served via registered post, as prescribed by law, and this fact was confirmed by the Court (Justice M. Muigai) in the Ruling delivered on 29th May 2020. The said Ruling has not been set aside or appealed, and service of the notices is therefore no longer a live issue.
45. This Court has considered and perused the said Ruling and finds that the Plaintiff is seeking a re-litigation of a matter that has already been determined. The Court views this as an impermissible attempt to reopen settled issues. Any dissatisfaction with the Ruling of 29th May 2020 ought properly to be pursued in the Court of Appeal.
46. It is not in dispute that the Applicant obtained a credit facility from the Respondent. Equally, the Applicant does not deny that it is in arrears in the repayment of the said facility. While the Applicant seeks to challenge the arrears position by reference to the IRAC report, the Court finds the same insufficient to displace the Respondent’s position at this interlocutory stage. Further, the Applicant does not contest that the Respondent issued the requisite statutory notices pursuant to the exercise of its statutory power of sale.
47. The core of the Plaintiff’s present grievance lies in the allegation that the Respondent failed to comply with Section 97 of the Land Act by grossly undervaluing the property prior to the exercise of the power of sale. The Applicant contends that this amounted to a breach of the statutory duty of care to obtain the best price reasonably obtainable at the time of sale. The governing law on forced sale valuation is found under Section 97(1) and (2) of the Land Act, which provides as follows:
(1) A charge who exercises a power to sell the charged land, including the exercise of the power to sell in pursuance of a court, owes a duty of care to the charger, any guarantor of the whole or any part of the sums advanced to the charger, any charge under a subsequent charge or under a lieu to obtain the best price reasonably obtainable at the time of sale.
(2) A charge shall, before exercising the right of sale, ensure that a forced sale valuation is undertaken by a valuer.
48. On this issue, the Court is invited to determine whether the Respondent discharged its duty under Section 97 by commissioning a proper forced sale valuation. The statutory framework requires a valuation to be conducted by a qualified valuer and the best price reasonably obtainable to be secured.
49. A valuation undertaken for purposes of sale of charged property must be carried out in good faith, by a duly qualified and competent
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