https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12934

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL & ADMIRALITY DIVISION** **HCCOMM NO. E334 OF 2022** **FLORENCE WAIRIMU MBUGUA ….1ST PLAINTIFF/RESPONDENT** **FARMERS INDUSTRY LIMITED…..2ND PLAINTIFF/RESPONDENT** **VERSUS** **CFC STANBIC BANK LIMITED………..…DEFENDANT/APPLICANT** **RULING** 1. The Defendant/Applicant, Stanbic Bank Kenya Limited, filed the Notice of Motion dated 2nd February 2026, brought under Order 40 Rules 2 and 4, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and Sections 23(b) of the Auctioneers Act and Rules 9(1)(b) and (c) and 16(1)(c) of the Auctioneers Rules. 2. The Applicant seeks orders compelling the Plaintiffs to grant it, its appointed property manager/receiver, agents and servants, access to the charged property, L.R. No. 209/1530 (I.R. No. 95209), Pangani, Nairobi, authority to break into the premises in default of compliance, police assistance and security during execution, and costs. 3. The application is supported by the affidavit of Angela Njeri, who deposes that the Plaintiffs defaulted on repayment of the secured facilities and have persistently frustrated the Applicant's efforts to realize its security. She avers that, despite a ruling delivered by Majanja J. on 10th August 2023 directing that the Applicant be granted access to the charged property, the Plaintiffs have continued to deny access, thereby frustrating inspection, preservation, management and realization of the security. It is further deposed that the property has remained vacant and unattended, exposing it to deterioration and wastage, and that the Applicant has appointed a property manager to manage the property and recover rental income pending realization. 4. The application is opposed through the replying affidavit of the 1st Plaintiff sworn on 3rd March 2026. She contends that the application is premature since no receiver has been validly appointed and therefore the Applicant cannot seek access on behalf of a receiver. She further argues that the Applicant cannot simultaneously pursue the statutory power of sale, appointment of a receiver and possession of the charged property. She disputes that Clause 6.3 of the Charge permits entry for receivership purposes, denies having obstructed access, maintains that the property is vacant but well maintained, and states that she has been marketing it to secure tenants. She further contends that the ruling of 10th August 2023 only permitted access for purposes of showing the property to prospective purchasers upon prior arrangements. 5. The application was canvassed orally. I have considered the application, the affidavits on record and the rival submissions. **Analysis and determination** 1. The principal issue for determination is whether the the Applicant has made out a case for the grant of the orders sought. 2. The conditions for the grant of an interlocutory injunction have long been well settled in the case of **Giella v Cassman Brown & Company Limited [1973] EA 358:** they are as follows: 3. ***An applicant must show a prima facie case with a probability of success,*** 4. ***An applicant must demonstrate it will suffer irreparable injury which would not adequately be compensated by an award of damages.*** 5. ***If the court is in doubt, it will decide an application on a balance of convenience.*** 6. The Court of Appeal in **Kenya Airports Authority v Paul Njogu Mungai & Others, Civil Application No. NAI 29 of 1997** stated: ***“We would point out that the principles governing the grant of mandatory as well as prohibitory (restrictive) orders pending hearing and determination of a suit in the High Court are the self-same ones enunciated in the celebrated case of Giella v Cassman Brown & Co. Ltd [1973] EA 358 save that a temporary mandatory injunction can only be granted in exceptional and in the clearest of the cases.”*** 1. **Locabil International Finance Limited v Agro export [1986] 1 ALLER 901 at page 906** was quoted with approval: ***“The matter before the court is not only an application for a mandatory injunction but is an application for a mandatory injunction which, if granted, would amount to the grant of a major part of the relief claimed in the action. Such an application should be approached with caution and the relief granted only in a clear case.”*** At page 901 the court had stated: ***“Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction was rightly granted…”*** 1. In the present case, it is common ground that the Plaintiffs obtained financial facilities from the Applicant, which were secured by a legal charge and a further charge over L.R. No. 209/1530 (I.R. No. 95209), Pangani, Nairobi. It is equally not in dispute that the Plaintiffs defaulted on the said facilities. Previous applications by the Plaintiffs seeking to restrain the Applicant from exercising its statutory power of sale were dismissed. More importantly, there is no dispute that by a ruling delivered on 10th August 2023, this Court (Majanja J.) granted the Applicant access to the charged property. 2. That order of 10th August 2023 has neither been reviewed, varied nor set aside. It remains a valid and binding order of this Court. It is a fundamental principle of our legal system that every person against whom an order is made is duty-bound to obey it unless and until it is lawfully discharged. 3. As was stated in **Hadkinson v Hadkinson [1952] 2 All ER 567**, it is the obligation of every person against whom an order is made to obey it unless and until it is discharged. 4. The Applicant has demonstrated that despite the said order, it has been unable to obtain meaningful access to the property to inspect, preserve and prepare the property for realization. The 1st Plaintiff merely states that she has not denied access, but she does not demonstrate any occasion on which the Applicant was actually granted the access contemplated by the earlier order. In the absence of such evidence, I am not persuaded that the Plaintiffs have complied with the subsisting court order. 5. The 1st Plaintiff’s claim that the Applicant cannot both exercise the statutory power of sale and appoint a receiver or seek to preserve the security is unfounded. Section 90(3) of the Land Act, 2012 grants various remedies to a chargee upon default, such as suing the chargor for owed money, appointing a receiver for the income of the charged land, taking possession of the land, or selling it. Section 96 specifically authorizes sale as a means of realization. These remedies are cumulative and can be exercised together unless explicitly restricted by the charge document or law. A chargee has the right to take reasonable steps to prevent the deterioration of the charged property while awaiting realization. 6. Clause 6.3 of the Charge and the Further Charge, which the Applicant relies on, explicitly grants the chargee the right to enter for inspection, preservation, and protection of the charged property. This right is independent of any receiver appointment and is supported by an earlier court order. The Plaintiffs cannot claim that the Applicant must wait for a receiver to be appointed before exercising its contractual and statutory rights to inspect and preserve the security. 7. The 1st Plaintiff claims the property is vacant and well maintained, but this does not address the Applicant’s valid concern that access was denied, preventing verification of the property's condition and the ability to prevent further deterioration. The Applicant’s interest in safeguarding the property aligns with the Plaintiffs’ aim to preserve its value. There is no evidence that granting the requested orders would cause irreparable harm to the Plaintiffs, in fact, denying access might lead to security loss and depreciation, harming both parties. Additionally, the balance of convenience favors granting the orders, as the property remains vacant and the Applicant only intends to preserve and manage it until sale, without attempting to remove the Plaintiffs from possession. 8. Taking all these factors into account, I find that the Defendant/Applicant has made out a *prima facie* case for the grant of an interlocutory mandatory injunction. The orders that commend themselves to me as fair to make in the circumstances of this case are: 9. ***The Plaintiffs shall, within seven (7) days of this ruling, grant the Defendant, its duly appointed property manager, agents, servants, auctioneers and valuers reasonable and unhindered access to L.R. No. 209/1530 (I.R. No. 95209), Pangani, Nairobi, for purposes of inspection, securing, cleaning, repairs, maintenance, preservation, management and collection of rental income in accordance with the Charge and Further Charge.*** 10. ***In default of compliance within the said seven (7) days, the Defendant, its duly authorized agents and servants are authorized to gain access to the property, including by breaking in where reasonably necessary, strictly for the purposes set out in order (a).*** 11. ***The Officer Commanding Parklands Police Station (OCS) shall provide security and maintain law and order during the execution of these orders, if called upon to do so.*** 12. ***The costs of the application are awarded to the Defendant/Applicant.*** **It is so ordered.** **RULING** delivered virtually, dated and signed at **NAIROBI** This **13th** day of **August** 2026. **PETER M. MULWA** **JUDGE** **In the presence of:** *Mr. Thuku* for Plaintiffs *Ms. Naomi Mutisya* for Defendant Court Assistant*: Sharon*