REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL CASE NO. E011 OF 2025
(Coram: Andayi W. F., J.)
YUSUF HASSAN MUBWANA…………….................................…PLAINITFF/APPLICANT
VERSUS
MWANANCHI CREDIT LIMITED...............................1 ST DEFENDANT/RESPONDENT
GARAM INVESTMENT AUCTIONEERS………….2 ND DEFENDANT/RESPONDENT
RULING
1. The plaintiffs’/applicants’ Notice of Motion dated 21 st August 2025 seeks an order of temporary injunction to restrain the defendants/respondents from selling by public auction, disposing, alienating, transferring or otherwise dealing with land Title No. Kwale/Vanga/40 pending the hearing and determination of the suit.
2. The application is brought under section Article 40(1), (2) of the Constitution, sections 1A, 1B, 3, 3A and 63(c), (e) of the Civil Procedure Act (Cap. 21) Laws of Kenya; Order 40 Rule 1(a), (b) and Order 51 Rule 1 of the Civil Procedure rules, 2010.
3. The grounds in support of the application are set out on the face of the application and expounded in the supporting affidavit sworn on 21 st August 2025 by Yusuf Hassan Mubwana, the plaintiff/applicant (the borrower). They are that the applicant’s property, land parcel title No. Kwale/Vanga/40 is under threat of sale by the 1 st respondent through the 2 nd respondent who had issued an advertisement for sale of the property. The threatened sale is pursuant to the 1 st respondent’s exercise of its statutory power of sale upon a charge registered upon the said parcel of land as security for a loan facility of KShs 3,000,000/= from the 1 st respondent. It is the applicant’s contention that the 1 st respondent’s right to exercise its power of sale has not arisen and does not exist at all over the said property for various reasons.
4. First that the applicant obtained a credit facility for KShs 3,000,000/= only from the 1 st respondent in 2022. The applicant is careful not to state the date the loan was advanced. The said loan was repayable in 48 monthly installments of KShs 62,500/= until February 2026. As at the time of making this application, he had repaid 39 of the installments totaling KShs 2,437,500/= in liquidation of the loan. He offered his two motor vehicles registration numbers KCD 979E and KCC 817N both worth KShs 8,000,000/= as security for the loan and surrendered the logbooks to the 1 st respondent. Subsequently, the 1 st respondent required him to provide more security for the loan and he offered the said parcel of land upon which a charge was created thereon as security without his consent due to his inability to read and write. It was backdated to 6 th February 2022. The credit facility was increased from KShs 3,000,000/= to KShs 6,000,000/=.
5. He was surprised when the 2 nd respondent went to his matrimonial home on 20 th August 2025 and affixed on his house gate a notice of public auction for his said parcel of land and a 45-day statutory notice but the auction was scheduled to take place on 25 th August 2025. That made the notice to be only for 5 days and therefore unlawful and without an advertsisemtn for sale nor a notification of sale as are mandatorily required in law.
6. The applicant further deposes that the sum of KShs 6,485,835.11 demanded by the 1 st respondent is extortionate, unconscionable, exaggerated and full of hidden costs. He therefore disputes the amount, questioning how a loan of KShs 3,000,000/= could have risen to that figure especially considering that he had made payments of KShs 2,437,500/= in liquidation of the loan and that the 1 st respondent held his two motor vehicle log books as security for the same loan. At the same time, the 1 st respondent had repossessed one of the buses registration number KCC 817N on 19 th August 2025.
7. He deposes further that the 1 st respondent has failed to make available to him the loan account for the facility for purposes of reconciliation but have vowed to auction him by all means.
8. The application is opposed by the 1 st respondent through a replying affidavit sworn on 13 th October 2025 by Otieno Cedella, legal counsel of the 1 st respondent who deposes that the application does not meet the threshold for granting the reliefs sought.
9. He has set out the case for the 1 st respondent against the applicant being that the applicant was advanced a loan facility of KShs 6,000,000/= for loan buy-off and business by the 1 st respondent. He accordingly executed a loan facility form for KShs 6,000,000/= on 4 th February 2022 as well as a loan agreement form. The loan was guaranteed by the applicant’s spouse Shemsa Nassoro through a guarantee executed in February 2022. Through the same loan agreement, the applicant applied for and obtained two weekend loans of KShs 690,000/= each on 3 rd June 2022 and 3 rd July 2022 over and above the principal amount.
10. According to the 1 st respondent, the applicant provided the two motor vehicles KCC 871N valued at KShs 2,400,000/= as at 20 th May 2025 and KCD 979E valued at KShs 2,420.000/= as at 2 nd February 2022 and the subject land parcel registration number Kwale/Vanga/40 valued at KShs 1,500,000/= as at 2 nd February 2025. The 1 st respondent registered a charge over the subject property on 11 th February 2022.
11. It is the 1 st respondent’s case that the import of the documentation was explained to the applicant upon filling the same.
12. After drawing the funds, the applicant defaulted in making repayments. The 1 st respondent duly notified him of the defaults through various notices and demanded that the defaults be rectified.
13. It is the 1 st respondent’s case that all statutory notices were duly issued to the applicant as required by law. On two occasions, the applicant and his spouse approached the 1 st respondent with proposals on how the applicant intended to rectify the defaults but he never did. He instead filed the suit herein.
14. The 1 st respondent annexed to the replying affidavit all the documents mentioned in the supporting affidavit including the loan application form, letter of offer, loan agreement, applicant’s written acknowledgment of receipt of funds, deed of guarantee by the spouse, agreements for the weekend loans, valuation reports for the securities, copy of official search dated 23 rd May 2025 showing the charge registered upon the subject property, demand letters, correspondences between the parties, the 90-day statutory notices to the applicant and spouse, the instructions by the applicant to auctioneers and the notices issued by the auctioneer to the applicant including, notices to sale and notifications of sale. The 1 st respondent has also annexed to the affidavit the statement of account showing that as at 4 th September 2025 the applicant’s outstanding indebtedness with the 1 st respondent was KShs 4,082,274.74.
15. It is the 1 st respondent’s case that the applicant’s assertions that he was not served with requisite notices are not true. That the applicant has admitted being in default of repayment of the loan and therefore has not made out a case for grant of a temporary injunction. Further that despite the 1 st respodent repossessing and selling one of the securities, motor vehicle registration number KCC 817N, there remains a loan balance of KShs 4,082,274.74 as at 4 th September 2025 which the applicant is yet to clear and it continues to attract interest and other charges. The 1 st respondent has annexed to the affidavit the statement of account showing the applicant’s outstanding balance.
16. The applicant did not file a supplementary affidavit to rebut the depositions by the 1 st respondent.
17. The 2 nd respondent has not participated in this application as it has not filed any document in response.
18. The court directed that the application be argued by way of written submissions. However, only learned counsel for the 1 st respondent filed submissions and supporting authorities which are duly considered in the analysis and evaluation herein. I have not seen any submissions filed by the applicant.
19. Learned counsel submits that the issues for determination are whether the applicant has satisfied the requirements for grant of an order of injunction and who bears the costs of the application.
20. It is discernible from the affidavits filed by the parties that Yusuf Hassan Mubwana, the applicant is the registered owner of the property known as land parcel No. Kwale/Vanga/40 which he offered as security for credit facilities advanced to him by the 1 st respondent Mwananchi Credit Ltd. When he offered his subject parcel of land as security for the credit facilities a legal charge was created over the property in favour of the 1 st respondent.
21. It is the applicant’s case that the credit facilities offered amounted to KShs 3,000,000/= only but that for some unknown reason to him, the 1 st respondent has exaggerated the sum to become KShs 6,000,000/=. However, in rebuttal, the 1 st respondent has produced documents to show that in fact, the credit facilities were initially KShs 6,000,000/= and two additional sums of KShs indicated as weekend loans each worth KShs 690,000/= were advanced to the applicant.
22. I have considered the application and the response thereto by the 1 st respondent as well as the submissions by learned counsel. The main issue for determination in this application is whether the conditions for issuance of temporary injunction have been met by the applicant.
23. The traditional conditions to be met by a party seeking a temporary injunction are set out in the case of Giella v. Cassman Brown Co. Ltd [1973] EA 358 to wit:-
a. Has the applicant established a prima facie case with a probability of success?
b. Will the applicant suffer irreparable injury unless an injunction is issued? and,
c. where there is doubt in the mind of the court the application will be determined depending on where the balance of convenience lies.
24. The Court of Appeal in the case of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) restated the above test as follows:
In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
(a) establish his case only at a prima facie level,
(b) demonstrate irreparable injury if a temporary injunction is not granted, and
(c) allay any doubts as to (b) by showing that the balance of convenience is in his favour.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.
It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”
25. The applicant having failed to respond to the facts deposed to by the 1 st respondent in the replying affidavit, the same remain untraversed and so have to be taken as the correct position on the matter as was held in the case of Mohamed & Another v. Haidara [1972] E.A. 166 and KENYA REINSURANCE CORPORATION V R. M. MUTISO [2009] KEHC 2203 (KLR) which I agree with.
26. The first test is whether the applicant has established a prima facie case with a probability of success. The guide here is the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) where the Court of Appeal defined a prima facie case as follows;
“...in civil cases, it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”
27. The applicant has raised various issues in his application namely: that the 1 st respondent holding other securities besides the charge upon the subject land; that the amount of credit was exaggerated from KShs 3,000,000/= to KShs 6,000,000/= and that the amount demanded as outstanding of KShs 6,485,835.11 is disputed and it fails to take into account the sum of KShs 2,437,500/= paid towards liquidation of the debt and is therefore exaggerated, extortionate, and unconscionable; that the charge was back-dated to provide that it was registered on 16 th February 2022, that he has made substantial payment of the credit amount in the sum of KShs 2,437,500/=, failure to comply with statutory requirements under the law and failure to advertise the intended sale in a newspaper with national circulation. The court has to consider these issues in relation to the tests for grant of an interlocutory application above.
28. Starting with the issue of how much credit was advanced to the applicant and what the outstanding amount is, the applicant has not provided any document to show how much credit he sought from the 1 st respondent and how much was advanced. To the contrary, the 1 st respondent has made available copies the letter of offer and loan agreement, where in both the credit facility amount is indicated as KShs 6,000,000/=. Therefore, his allegation that the credit facility changed from 3,000,000/= to KShs 6,000,000/= without his knowledge is discounted by the affidavit evidence tendered by the 1 st respondent.
29. The applicant does not dispute the fact that the credit facility is in arrears. The 1 st respondent has produced the statement of account showing that indeed the credit facility is in arrears of KShs 4,082,274.74 as at 4 th September 2025 shortly after the applicant filed the present suit. It has been held in various cases that a dispute as to the amount owed is not sufficient ground for an injunction to be granted. I am persuaded to follow the statement by the High Court in the case of Palmy Company Limited v Consolidated Bank of Kenya Limited [2014] KEHC 4811 (KLR) that;
“Unless there are other cogent grounds, disputes on the amounts owing or interest charged will not be the sole basis for grant of an injunction against a chargee who is exercising the statutory power of sale of the charged property…”
30. The court in the above case was citing Halsbury’s Laws of England, Vol. 32 (4 th Edition) paragraph 725 where it was stated that:
‘’725. When mortgagee may be restrained from exercising power of sale
The mortgagee will not be restrained from exercising his power of sale because the amount due is in dispute, or because the mortgagor has begun a redemption action, or because the mortgagor objects to the manner in which the sale is being arranged. He will be restrained, however, if the mortgagor pays the amount claimed into court, that is, the amount which the mortgagor claims to be due to him, unless, on the terms of the mortgage, the claim is excessive’’.
31. In the present case, other than deposing that the amount outstanding is exaggerated, exorbitant and unconscionable, the applicant has not pointed out from the statement of account where the charges are exorbitant and how exaggerated they are and by how much and therefore outside the contractual rates agreed in the charge document. He has not even pointed out what is unconscionable about the contract. In any case, the 1 st respondent has deposed in the replying affidavit that the amount outstanding is KShs 4,082,274.74 as at 4 th September 2025 and not KShs 6,485,835.11 as stated by the applicant.
32. On its part, the 1 st respondent has provided a statement of account in a bid to show how the amounts have accrued to the amount being claimed as per the statutory notices issued. The fact that the loan is in arrears and is not being serviced is not in contention and is supported by the statement of account,
33. The applicant also pleads that the 1 st respondent is holding other securities besides the charge upon the subject land and seems to suggest that the applicant should complete the realization of those other securities first before moving to the subject parcel of land. His contention was that the two vehicles are worth much more than the outstanding sum. He did not provide any valuation reports upon which he based the alleged values of the vehicles. His allegation that they were worth KShs 8,000,000/= was only a word of mouth. Further, one of the vehicles had already been realized and the outstanding sum was still substantial so that the value of the remaining vehicle would not liquidate the outstanding sum. Therefore, even if the 1 st respondent elected to realize the second vehicle before the parcel of land, its value would not raise an amount sufficient to liquidate the outstanding sum.
34. The final issue is the contention by the applicant is that requisite statutory notices under the law were not issued in good time by the 1 st respondent. That they were only left at his residence on 20 th August 2025 when the scheduled auction was for 25 th August. He has annexed to his affidavit the proclamation notice and redemption notice issued by Garam Auctioneers dated 13 th June 2025 and requiring him to pay the sum of KShs 6,192,035.11 together with the auctioneer’s costs on or before 25 th August 2025 failure to which the property would be sold by public auction on that date. There is also a notification of sale of the said property of the same date as well as an advertisement for sale.
35. The applicant’s contention is discounted by the 1 st respondent who deposes in the replying affidavit and has outlined and annexed to the replying affidavit copies of all the notices served upon the applicant as borrower. The 1 st respondent first sent a demand notice dated 16 th July 2024 asking the applicant to regularize his account which was in arrears. Another demand notice dated 15 th August 2024 was also issued. Both demand notices were sent by registered post. The applicant responded by way of e-mail on 3 rd November 2024 in which he promised to pay the outstanding money on Tuesday 3 rd December 2024.
36. The first statutory notice was issued by Wangai Nyuthe & Co. Advocates dated 25 th October 2024 requiring him to pay the outstanding sum of KShs 6,525,076.07. On 28 th October 2024 the 1 st respondent served the same notice upon the applicant through his e-mail, a copy of which is annexed to the replying affidavit. There are subsequent notices issued in June 2025. The same are not disputed by the applicant. In the circumstances, I find that the allegation by the applicant that he was not served with the noticed in good time has been properly discounted by the 1 st respondent.
37. There is no dispute by the applicant that it is in default of repayment of the loan amount. Such notices issued in compliance with sections 90 and 96 of the Land Act. The notices were asking the applicant to remedy the default within 3 months by paying the outstanding sum and his right to apply to court for relief. I am satisfied that the notices to the applicant fully complied with section 90(1) of the Land Act which in part provides that:
(1) If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be in default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.
(2) The notice required by subsection (1) shall adequately inform the recipient of the following matters—
(a) the nature and extent of the default by the chargor;
(b) if the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed;
(c) if the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so as to rectify the default and the time, being not less than two months, by the end of which the default must have been rectified;
(d) the consequence that if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of the remedies referred to in this section in accordance with the procedures provided for in this sub-part; and
(e) the right of the chargor in respect of certain remedies to apply to the court for relief against those remedies.
(3) If the chargor does not comply within ninety days after the date of service of the notice under, subsection (1), the chargee may—
(a) sue the chargor for any money due and owing under the charge;
(b) appoint a receiver of the income of the charged land;
(c) lease the charged land, or if the charge is of a lease, sublease the land;
(d) enter into possession of the charged land; or
(e) sell the charged land;
(4) …
38. There is no indication that the applicant/borrower remedied the default after the expiry of the 3 months (90-days) notice issued under section 90 of the Act. I have also seen another notice titled “Notice to Sell” dated 1 st April 2025 to the applicant in respect of charge against land title No. Kwale/Vanga/40 for the outstanding loan, from Wangai Nyuthe & Co. Advocates on behalf of the 1 st respondent I am satisfied that this notice complies with the mandatory provisions of section 96(2 ) of the Land Act which provides that:
(1) Where a chargor is in default of the obligations under a charge and remains in default at the expiry of the time provided for the rectification of that default in the notice served on the chargor under section 90(1), a chargee may exercise the power to sell the charged land.
(2) Before exercising the power to sell the charged land, the chargee shall serve on the chargor a notice to sell in the prescribed form and shall not proceed to complete any contract for the sale of the charged land until at least forty days have elapsed from the date of the service of that notice to sell.
(3) A copy of the notice to sell served in accordance with subsection (2) shall be served on—
(a) the Commission, if the charged land is public land;
(b) the holder of the land out of which the lease has been granted, if the charged land is a lease;
(c) a spouse of the chargor who had given the consent;
(d) any lessee and sublessee of the charged land or of any buildings on the charged land;
(e) any person who is a co-owner with the chargor;
(f) any other chargee of money secured by a charge on the charged land of whom the chargee proposing to exercise the power of sale has actual notice;
(g) any guarantor of the money advanced under the charge;
(h) any other person known to have a right to enter on and use the land or the natural resources in, on, or under the charged land by affixing a notice at the property; and
(i) any other persons as may be prescribed by regulations, and shall be posted in a prominent place at or as near as may be to the charged land.
39. The third notice required is what is commonly known as the notice of redemption issued under Rule 15(d) of the Auctioneers Rules made under the Auctioneers Act (Cap. 526) Laws of Kenya to the effect that the owner may redeem the property by payment of the amount outstanding and as indicated in the notice within 45 days. This was issued to the applicant on 13 th June 2025 by Garam Investments Auctioneers.
40. The allegation that there was no advertisement of the intended sale of the property in a newspaper with national circulation is not true. There was an advertisement in the Daily Nation newspaper of Monday 11 th August 2025 at page 15 which the 1 st respondent has provided a copy annexed to the replying affidavit.
41. Therefore, the contention by the applicant that the requisite notices were not issued in accordance with the law is without basis at all.
42. Based on the material presented to the court as evaluated above, and the court properly directing itself thereto, can it conclude that there exists a right to the applicants which has apparently been infringed by the respondents as to call for an explanation or rebuttal from the respondents? In other words, have the applicants sequentially met the conditions for the grant of an interlocutory injunction above?
43. From the findings above, I have come to the conclusion that there is no prima facie case established by the applicant to warrant this court to exercise its discretion to grant a temporary injunction against the 1 st respondent’s exercise of its power of sale of the applicant’s property known as land parcel No. Kwale/Vanga/40.
44. Since the requirements are sequential and the applicant has failed to satisfy the first requirement of establishing a prima facie case with a probability of success, the court cannot consider the subsequent conditions. Consequently, the application for temporary injunction fails and is dismissed.
45. Costs shall be in the cause.
46. Orders accordingly.
47. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 29 th day of July 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Atonga for Plaintiff/Applicant.
Mutugi for the 1 st Defendant/Respondent.
N/A for the 2 nd Defendant/Respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
FOOTNOTES
[1]
ENDNOTES
[i]
KWALE CIVIL case No. 011/202512 temporary INJUNCTION
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL CASE NO. E011 OF 2025
(Coram: Andayi W. F., J.)
YUSUF HASSAN MUBWANA…………….................................…PLAINITFF/APPLICANT
VERSUS
MWANANCHI CREDIT LIMITED...............................1 ST DEFENDANT/RESPONDENT
GARAM INVESTMENT AUCTIONEERS………….2 ND DEFENDANT/RESPONDENT
RULING
1. The plaintiffs’/applicants’ Notice of Motion dated 21 st August 2025 seeks an order of temporary injunction to restrain the defendants/respondents from selling by public auction, disposing, alienating, transferring or otherwise dealing with land Title No. Kwale/Vanga/40 pending the hearing and determination of the suit.
2. The application is brought under section Article 40(1), (2) of the Constitution, sections 1A, 1B, 3, 3A and 63(c), (e) of the Civil Procedure Act (Cap. 21) Laws of Kenya; Order 40 Rule 1(a), (b) and Order 51 Rule 1 of the Civil Procedure rules, 2010.
3. The grounds in support of the application are set out on the face of the application and expounded in the supporting affidavit sworn on 21 st August 2025 by Yusuf Hassan Mubwana, the plaintiff/applicant (the borrower). They are that the applicant’s property, land parcel title No. Kwale/Vanga/40 is under threat of sale by the 1 st respondent through the 2 nd respondent who had issued an advertisement for sale of the property. The threatened sale is pursuant to the 1 st respondent’s exercise of its statutory power of sale upon a charge registered upon the said parcel of land as security for a loan facility of KShs 3,000,000/= from the 1 st respondent. It is the applicant’s contention that the 1 st respondent’s right to exercise its power of sale has not arisen and does not exist at all over the said property for various reasons.
4. First that the applicant obtained a credit facility for KShs 3,000,000/= only from the 1 st respondent in 2022. The applicant is careful not to state the date the loan was advanced. The said loan was repayable in 48 monthly installments of KShs 62,500/= until February 2026. As at the time of making this application, he had repaid 39 of the installments totaling KShs 2,437,500/= in liquidation of the loan. He offered his two motor vehicles registration numbers KCD 979E and KCC 817N both worth KShs 8,000,000/= as security for the loan and surrendered the logbooks to the 1 st respondent. Subsequently, the 1 st respondent required him to provide more security for the loan and he offered the said parcel of land upon which a charge was created thereon as security without his consent due to his inability to read and write. It was backdated to 6 th February 2022. The credit facility was increased from KShs 3,000,000/= to KShs 6,000,000/=.
5. He was surprised when the 2 nd respondent went to his matrimonial home on 20 th August 2025 and affixed on his house gate a notice of public auction for his said parcel of land and a 45-day statutory notice but the auction was scheduled to take place on 25 th August 2025. That made the notice to be only for 5 days and therefore unlawful and without an advertsisemtn for sale nor a notification of sale as are mandatorily required in law.
6. The applicant further deposes that the sum of KShs 6,485,835.11 demanded by the 1 st respondent is extortionate, unconscionable, exaggerated and full of hidden costs. He therefore disputes the amount, questioning how a loan of KShs 3,000,000/= could have risen to that figure especially considering that he had made payments of KShs 2,437,500/= in liquidation of the loan and that the 1 st respondent held his two motor vehicle log books as security for the same loan. At the same time, the 1 st respondent had repossessed one of the buses registration number KCC 817N on 19 th August 2025.
7. He deposes further that the 1 st respondent has failed to make available to him the loan account for the facility for purposes of reconciliation but have vowed to auction him by all means.
8. The application is opposed by the 1 st respondent through a replying affidavit sworn on 13 th October 2025 by Otieno Cedella, legal counsel of the 1 st respondent who deposes that the application does not meet the threshold for granting the reliefs sought.
9. He has set out the case for the 1 st respondent against the applicant being that the applicant was advanced a loan facility of KShs 6,000,000/= for loan buy-off and business by the 1 st respondent. He accordingly executed a loan facility form for KShs 6,000,000/= on 4 th February 2022 as well as a loan agreement form. The loan was guaranteed by the applicant’s spouse Shemsa Nassoro through a guarantee executed in February 2022. Through the same loan agreement, the applicant applied for and obtained two weekend loans of KShs 690,000/= each on 3 rd June 2022 and 3 rd July 2022 over and above the principal amount.
10. According to the 1 st respondent, the applicant provided the two motor vehicles KCC 871N valued at KShs 2,400,000/= as at 20 th May 2025 and KCD 979E valued at KShs 2,420.000/= as at 2 nd February 2022 and the subject land parcel registration number Kwale/Vanga/40 valued at KShs 1,500,000/= as at 2 nd February 2025. The 1 st respondent registered a charge over the subject property on 11 th February 2022.
11. It is the 1 st respondent’s case that the import of the documentation was explained to the applicant upon filling the same.
12. After drawing the funds, the applicant defaulted in making repayments. The 1 st respondent duly notified him of the defaults through various notices and demanded that the defaults be rectified.
13. It is the 1 st respondent’s case that all statutory notices were duly issued to the applicant as required by law. On two occasions, the applicant and his spouse approached the 1 st respondent with proposals on how the applicant intended to rectify the defaults but he never did. He instead filed the suit herein.
14. The 1 st respondent annexed to the replying affidavit all the documents mentioned in the supporting affidavit including the loan application form, letter of offer, loan agreement, applicant’s written acknowledgment of receipt of funds, deed of guarantee by the spouse, agreements for the weekend loans, valuation reports for the securities, copy of official search dated 23 rd May 2025 showing the charge registered upon the subject property, demand letters, correspondences between the parties, the 90-day statutory notices to the applicant and spouse, the instructions by the applicant to auctioneers and the notices issued by the auctioneer to the applicant including, notices to sale and notifications of sale. The 1 st respondent has also annexed to the affidavit the statement of account showing that as at 4 th September 2025 the applicant’s outstanding indebtedness with the 1 st respondent was KShs 4,082,274.74.
15. It is the 1 st respondent’s case that the applicant’s assertions that he was not served with requisite notices are not true. That the applicant has admitted being in default of repayment of the loan and therefore has not made out a case for grant of a temporary injunction. Further that despite the 1 st respodent repossessing and selling one of the securities, motor vehicle registration number KCC 817N, there remains a loan balance of KShs 4,082,274.74 as at 4 th September 2025 which the applicant is yet to clear and it continues to attract interest and other charges. The 1 st respondent has annexed to the affidavit the statement of account showing the applicant’s outstanding balance.
16. The applicant did not file a supplementary affidavit to rebut the depositions by the 1 st respondent.
17. The 2 nd respondent has not participated in this application as it has not filed any document in response.
18. The court directed that the application be argued by way of written submissions. However, only learned counsel for the 1 st respondent filed submissions and supporting authorities which are duly considered in the analysis and evaluation herein. I have not seen any submissions filed by the applicant.
19. Learned counsel submits that the issues for determination are whether the applicant has satisfied the requirements for grant of an order of injunction and who bears the costs of the application.
20. It is discernible from the affidavits filed by the parties that Yusuf Hassan Mubwana, the applicant is the registered owner of the property known as land parcel No. Kwale/Vanga/40 which he offered as security for credit facilities advanced to him by the 1 st respondent Mwananchi Credit Ltd. When he offered his subject parcel of land as security for the credit facilities a legal charge was created over the property in favour of the 1 st respondent.
21. It is the applicant’s case that the credit facilities offered amounted to KShs 3,000,000/= only but that for some unknown reason to him, the 1 st respondent has exaggerated the sum to become KShs 6,000,000/=. However, in rebuttal, the 1 st respondent has produced documents to show that in fact, the credit facilities were initially KShs 6,000,000/= and two additional sums of KShs indicated as weekend loans each worth KShs 690,000/= were advanced to the applicant.
22. I have considered the application and the response thereto by the 1 st respondent as well as the submissions by learned counsel. The main issue for determination in this application is whether the conditions for issuance of temporary injunction have been met by the applicant.
23. The traditional conditions to be met by a party seeking a temporary injunction are set out in the case of Giella v. Cassman Brown Co. Ltd [1973] EA 358 to wit:-
a. Has the applicant established a prima facie case with a probability of success?
b. Will the applicant suffer irreparable injury unless an injunction is issued? and,
c. where there is doubt in the mind of the court the application will be determined depending on where the balance of convenience lies.
24. The Court of Appeal in the case of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) restated the above test as follows:
In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
(a) establish his case only at a prima facie level,
(b) demonstrate irreparable injury if a temporary injunction is not granted, and
(c) allay any doubts as to (b) by showing that the balance of convenience is in his favour.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.
It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”
25. The applicant having failed to respond to the facts deposed to by the 1 st respondent in the replying affidavit, the same remain untraversed and so have to be taken as the correct position on the matter as was held in the case of Mohamed & Another v. Haidara [1972] E.A. 166 and KENYA REINSURANCE CORPORATION V R. M. MUTISO [2009] KEHC 2203 (KLR) which I agree with.
26. The first test is whether the applicant has established a prima facie case with a probability of success. The guide here is the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) where the Court of Appeal defined a prima facie case as follows;
“...in civil cases, it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”
27. The applicant has raised various issues in his application namely: that the 1 st respondent holding other securities besides the charge upon the subject land; that the amount of credit was exaggerated from KShs 3,000,000/= to KShs 6,000,000/= and that the amount demanded as outstanding of KShs 6,485,835.11 is disputed and it fails to take into account the sum of KShs 2,437,500/= paid towards liquidation of the debt and is therefore exaggerated, extortionate, and unconscionable; that the charge was back-dated to provide that it was registered on 16 th February 2022, that he has made substantial payment of the credit amount in the sum of KShs 2,437,500/=, failure to comply with statutory requirements under the law and failure to advertise the intended sale in a newspaper with national circulation. The court has to consider these issues in relation to the tests for grant of an interlocutory application above.
28. Starting with the issue of how much credit was advanced to the applicant and what the outstanding amount is, the applicant has not provided any document to show how much credit he sought from the 1 st respondent and how much was advanced. To the contrary, the 1 st respondent has made available copies the letter of offer and loan agreement, where in both the credit facility amount is indicated as KShs 6,000,000/=. Therefore, his allegation that the credit facility changed from 3,000,000/= to KShs 6,000,000/= without his knowledge is discounted by the affidavit evidence tendered by the 1 st respondent.
29. The applicant does not dispute the fact that the credit facility is in arrears. The 1 st respondent has produced the statement of account showing that indeed the credit facility is in arrears of KShs 4,082,274.74 as at 4 th September 2025 shortly after the applicant filed the present suit. It has been held in various cases that a dispute as to the amount owed is not sufficient ground for an injunction to be granted. I am persuaded to follow the statement by the High Court in the case of Palmy Company Limited v Consolidated Bank of Kenya Limited [2014] KEHC 4811 (KLR) that;
“Unless there are other cogent grounds, disputes on the amounts owing or interest charged will not be the sole basis for grant of an injunction against a chargee who is exercising the statutory power of sale of the charged property…”
30. The court in the above case was citing Halsbury’s Laws of England, Vol. 32 (4 th Edition) paragraph 725 where it was stated that:
‘’725. When mortgagee may be restrained from exercising power of sale
The mortgagee will not be restrained from exercising his power of sale because the amount due is in dispute, or because the mortgagor has begun a redemption action, or because the mortgagor objects to the manner in which the sale is being arranged. He will be restrained, however, if the mortgagor pays the amount claimed into court, that is, the amount which the mortgagor claims to be due to him, unless, on the terms of the mortgage, the claim is excessive’’.
31. In the present case, other than deposing that the amount outstanding is exaggerated, exorbitant and unconscionable, the applicant has not pointed out from the statement of account where the charges are exorbitant and how exaggerated they are and by how much and therefore outside the contractual rates agreed in the charge document. He has not even pointed out what is unconscionable about the contract. In any case, the 1 st respondent has deposed in the replying affidavit that the amount outstanding is KShs 4,082,274.74 as at 4 th September 2025 and not KShs 6,485,835.11 as stated by the applicant.
32. On its part, the 1 st respondent has provided a statement of account in a bid to show how the amounts have accrued to the amount being claimed as per the statutory notices issued. The fact that the loan is in arrears and is not being serviced is not in contention and is supported by the statement of account,
33. The applicant also pleads that the 1 st respondent is holding other securities besides the charge upon the subject land and seems to suggest that the applicant should complete the realization of those other securities first before moving to the subject parcel of land. His contention was that the two vehicles are worth much more than the outstanding sum. He did not provide any valuation reports upon which he based the alleged values of the vehicles. His allegation that they were worth KShs 8,000,000/= was only a word of mouth. Further, one of the vehicles had already been realized and the outstanding sum was still substantial so that the value of the remaining vehicle would not liquidate the outstanding sum. Therefore, even if the 1 st respondent elected to realize the second vehicle before the parcel of land, its value would not raise an amount sufficient to liquidate the outstanding sum.
34. The final issue is the contention by the applicant is that requisite statutory notices under the law were not issued in good time by the 1 st respondent. That they were only left at his residence on 20 th August 2025 when the scheduled auction was for 25 th August. He has annexed to his affidavit the proclamation notice and redemption notice issued by Garam Auctioneers dated 13 th June 2025 and requiring him to pay the sum of KShs 6,192,035.11 together with the auctioneer’s costs on or before 25 th August 2025 failure to which the property would be sold by public auction on that date. There is also a notification of sale of the said property of the same date as well as an advertisement for sale.
35. The applicant’s contention is discounted by the 1 st respondent who deposes in the replying affidavit and has outlined and annexed to the replying affidavit copies of all the notices served upon the applicant as borrower. The 1 st respondent first sent a demand notice dated 16 th July 2024 asking the applicant to regularize his account which was in arrears. Another demand notice dated 15 th August 2024 was also issued. Both demand notices were sent by registered post. The applicant responded by way of e-mail on 3 rd November 2024 in which he promised to pay the outstanding money on Tuesday 3 rd December 2024.
36. The first statutory notice was issued by Wangai Nyuthe & Co. Advocates dated 25 th October 2024 requiring him to pay the outstanding sum of KShs 6,525,076.07. On 28 th October 2024 the 1 st respondent served the same notice upon the applicant through his e-mail, a copy of which is annexed to the replying affidavit. There are subsequent notices issued in June 2025. The same are not disputed by the applicant. In the circumstances, I find that the allegation by the applicant that he was not served with the noticed in good time has been properly discounted by the 1 st respondent.
37. There is no dispute by the applicant that it is in default of repayment of the loan amount. Such notices issued in compliance with sections 90 and 96 of the Land Act. The notices were asking the applicant to remedy the default within 3 months by paying the outstanding sum and his right to apply to court for relief. I am satisfied that the notices to the applicant fully complied with section 90(1) of the Land Act which in part provides that:
(1) If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be in default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.
(2) The notice required by subsection (1) shall adequately inform the recipient of the following matters—
(a) the nature and extent of the default by the chargor;
(b) if the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed;
(c) if the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so as to rectify the default and the time, being not less than two months, by the end of which the default must have been rectified;
(d) the consequence that if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of the remedies referred to in this section in accordance with the procedures provided for in this sub-part; and
(e) the right of the chargor in respect of certain remedies to apply to the court for relief against those remedies.
(3) If the chargor does not comply within ninety days after the date of service of the notice under, subsection (1), the chargee may—
(a) sue the chargor for any money due and owing under the charge;
(b) appoint a receiver of the income of the charged land;
(c) lease the charged land, or if the charge is of a lease, sublease the land;
(d) enter into possession of the charged land; or
(e) sell the charged land;
(4) …
38. There is no indication that the applicant/borrower remedied the default after the expiry of the 3 months (90-days) notice issued under section 90 of the Act. I have also seen another notice titled “Notice to Sell” dated 1 st April 2025 to the applicant in respect of charge against land title No. Kwale/Vanga/40 for the outstanding loan, from Wangai Nyuthe & Co. Advocates on behalf of the 1 st respondent I am satisfied that this notice complies with the mandatory provisions of section 96(2 ) of the Land Act which provides that:
(1) Where a chargor is in default of the obligations under a charge and remains in default at the expiry of the time provided for the rectification of that default in the notice served on the chargor under section 90(1), a chargee may exercise the power to sell the charged land.
(2) Before exercising the power to sell the charged land, the chargee shall serve on the chargor a notice to sell in the prescribed form and shall not proceed to complete any contract for the sale of the charged land until at least forty days have elapsed from the date of the service of that notice to sell.
(3) A copy of the notice to sell served in accordance with subsection (2) shall be served on—
(a) the Commission, if the charged land is public land;
(b) the holder of the land out of which the lease has been granted, if the charged land is a lease;
(c) a spouse of the chargor who had given the consent;
(d) any lessee and sublessee of the charged land or of any buildings on the charged land;
(e) any person who is a co-owner with the chargor;
(f) any other chargee of money secured by a charge on the charged land of whom the chargee proposing to exercise the power of sale has actual notice;
(g) any guarantor of the money advanced under the charge;
(h) any other person known to have a right to enter on and use the land or the natural resources in, on, or under the charged land by affixing a notice at the property; and
(i) any other persons as may be prescribed by regulations, and shall be posted in a prominent place at or as near as may be to the charged land.
39. The third notice required is what is commonly known as the notice of redemption issued under Rule 15(d) of the Auctioneers Rules made under the Auctioneers Act (Cap. 526) Laws of Kenya to the effect that the owner may redeem the property by payment of the amount outstanding and as indicated in the notice within 45 days. This was issued to the applicant on 13 th June 2025 by Garam Investments Auctioneers.
40. The allegation that there was no advertisement of the intended sale of the property in a newspaper with national circulation is not true. There was an advertisement in the Daily Nation newspaper of Monday 11 th August 2025 at page 15 which the 1 st respondent has provided a copy annexed to the replying affidavit.
41. Therefore, the contention by the applicant that the requisite notices were not issued in accordance with the law is without basis at all.
42. Based on the material presented to the court as evaluated above, and the court properly directing itself thereto, can it conclude that there exists a right to the applicants which has apparently been infringed by the respondents as to call for an explanation or rebuttal from the respondents? In other words, have the applicants sequentially met the conditions for the grant of an interlocutory injunction above?
43. From the findings above, I have come to the conclusion that there is no prima facie case established by the applicant to warrant this court to exercise its discretion to grant a temporary injunction against the 1 st respondent’s exercise of its power of sale of the applicant’s property known as land parcel No. Kwale/Vanga/40.
44. Since the requirements are sequential and the applicant has failed to satisfy the first requirement of establishing a prima facie case with a probability of success, the court cannot consider the subsequent conditions. Consequently, the application for temporary injunction fails and is dismissed.
45. Costs shall be in the cause.
46. Orders accordingly.
47. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 29 th day of July 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Atonga for Plaintiff/Applicant.
Mutugi for the 1 st Defendant/Respondent.
N/A for the 2 nd Defendant/Respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
FOOTNOTES
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ENDNOTES
[i]
KWALE CIVIL case No. 011/202512 temporary INJUNCTION