https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12985

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU COMMERCIAL DIVISION CIVIL SUIT NO. E009 OF 2025 CYNTHIA NJUGUNA.......................................PLAINTIFF WAMBUI -VERSUS- NCBA BANK KENYA PLC.........................................1ST DEFENDANT REGENT AUCTIONEERS........................................2ND DEFENDANT LEMAIYEN INVESTMENTS LIMITED....................3RD DEFENDANT RULING 1. For determination before this Court are two applications filed by the Plaintiff, Cynthia Wambui Njuguna. The first application is the Notice of Motion dated 18th March, 2025, which principally seeks interlocutory injunctive relief, preservation of the suit property known as L.R. No. KIAMBAA/KANUNGA/2136, an order for accounts, while the second application is the Notice of Motion dated 24th March, 2025 which is directed mainly against the 3rd Defendant, Lemaiyen Investments Limited, and its directors, Catherine Njeri Njau and Michael Njoroge, for alleged contempt of the interim orders issued on 21st March, 2025. 1 |HCCOMM NO.E009 OF 2025 - RULING Background 2. The two applications arise from the same charge transaction, and according to the Plaintiff, the 1st Defendant, NCBA Bank Kenya PLC, acting through the 2nd Defendant, Regent Auctioneers, unlawfully exercised its statutory power of sale over the suit property and sold it to the 3rd Defendant. In response, the Defendants answer that the Plaintiff defaulted in repayment, that the statutory power of sale lawfully accrued, that the property was properly sold by public auction, and that the 3rd Defendant is now the registered proprietor and purchaser for value of the said property. 3. Since the contempt application is said to have been triggered by the interim order made in the injunction application, I consider it necessary to set out the pleadings, affidavits and submissions in some detail for context. THE APPLICATION DATED 18TH MARCH, 2025 4. The first application is the Plaintiff’s Notice of Motion dated 18th March, 2025. It is expressed to be brought under the provisions of Sections 1A, 1B, 3A, 59 and 63(e), all of the Civil Procedure Act, Orders 40 Rules 1(a), 2, 4 and 10, Order 51 Rule 1 all of the Civil Procedure Rules, Sections 82, 84, 90(2) and (3), 96, 97 and 98, all of the Lands Act, Sections 56, 68, 69, 70, 106 and 107, all of the Land Registration Act, section 33B of the Banking Act, and 2 |HCCOMM NO.E009 OF 2025 - RULING Section 36 of the Central Bank Act. It seeks the following prayers: a) Spent. b) Spent. c) That this Honorable Court be pleased to grant a temporary order of injunction restraining the Defendants whether by themselves, their employees, servants, agents or auctioneers from doing any of the following acts that is to say from completing by conveyance or transfer of any sale concluded by auction or private treaty, taking possession , demolishing or destroying developments therein appointing, Receivers or exercising any power conferred by Section 90(3) of the Land Act, leasing, letting, charging or otherwise howsoever interfering with the Plaintiff’s ownership or title to all that parcel of land known as L.R NO. KIAMBAA/KANUNGA/2136 until the determination of the suit. d) That an order be made under Section 106 of the Land Registration Act. No. 3 of 2012 and the doctrine of lis pendens that during the pendency of this suit ALL FURTHER REGISTRATION or change of registration in the ownership, leasing, subleasing, allotment, changing user, occupation or possession or in any kind of right, title or interest ALL THAT parcel of Land known as L.R 3 |HCCOMM NO.E009 OF 2025 - RULING NO. KIAMBAA/KANUNGA/2136 with any Land Registry, Government Department and all other registering authorities be and us hereby prohibited. e) That this Honourable Court do make an order that proper accounts be taken and furnished by the Defendants and that all necessary inquiries involving the account be made as follows; i. The actual amount lent ii. The actual interest charged iii. The actual penalties charged iv. The actual bank charges incurred and debited to the account v. Actual interest rate used vi. The actual interest on interest charged vii. Valuation charges and auctioneer charges viii. The actual interest on arrears charged. ix. That the Court be pleased to order and/or direct the officer Commanding Kanunga Police Station (OCS) or any other officer and/or nearest police station to offer security, assistance, maintain law and order and ensuring compliance. x. That costs of and occasioned by this application be provided for. 4 |HCCOMM NO.E009 OF 2025 - RULING 5. The application is premised on several grounds on its face and in summary, the Plaintiff states that she was the registered proprietor of L.R. No. KIAMBAA/KANUNGA/2136, a property she describes as prime and unique. She avers that she approached the 1st Defendant for financial accommodation and was offered facilities which included a hire purchase facility for a motor vehicle and a loan facility for plot purchase, totaling Kshs.20,722,612.78. These facilities were repayable by joint monthly instalments of Kshs.354,947.94 for over ten years, at an interest rate of 13% per annum and a default interest rate of 2.5% per month. The facility was secured by a first legal charge over the suit property and a second legal charge over Motor Vehicles Registration Numbers KCR 333T and KCX 777L. 6. The Plaintiff contends that the 1st Defendant unlawfully expanded the exposure of the suit property to cover life and fire insurance premiums and alleged default amounts, then capitalised those amounts with further interest and penalties. In the Plaintiff’s view, that created a revolving and oppressive indebtedness which clogged her equity of redemption. She maintains that she had been diligently paying the facility and had paid over Kshs.10,000,000, yet the 1st Defendant treated the account as if the debt remained substantially unpaid. 5 |HCCOMM NO.E009 OF 2025 - RULING 7. The Plaintiff further alleges that the 1st Defendant varied interest rates without contractual or statutory authority, contrary to the letter of offer, the Banking Act and principles governing fair banking charges. She challenges the alleged statutory notices as provided for under Sections 90 and 96 of the Land Act on grounds that they were not served upon her or upon her appointed agent, David Njuguna Ngoi, or upon her former advocates, Morara Onsongo & Company Advocates, whose appointment had allegedly been communicated to the bank. 8. The Plaintiff also challenges the valuation and auction process. She states that the suit property had not been valued within one year prior to sale as required by the Auctioneers Rules and Section 97 of the Land Act, and that the property was sold at a gross undervalue of Kshs.12,380,000 despite her valuation placing it at approximately Kshs.62,000,000. She further asserts that the property was previously sold to Harvest Snacks Centre Limited on 8th May, 2024, which sale collapsed, and that no fresh statutory notices were served before the later auction of 7th October, 2024 to the 3rd Defendant. 9. The Plaintiff’s final complaint is that the intended transfer and dealing with the suit property would remove the substratum of the suit, defeat her proprietary rights, and occasion loss that would not be adequately compensated by damages. She 6 |HCCOMM NO.E009 OF 2025 - RULING therefore seeks a temporary injunction, an inhibition or lis pendens order, accounts, and police assistance for compliance. 10.Those grounds are further explained in the supporting affidavit of Cynthia Wambui Njuguna sworn on 18th March, 2025. In that affidavit, she depones that she had paid the 1st Defendant over Kshs.10,000,000, as allegedly reflected in the bank statements. She further states that on 19th February, 2024 she appointed her father, David Njuguna Ngoi, as her agent, and that on 1st March, 2024 her former advocates wrote to the 1st Defendant communicating the appointment. 11.The deponent challenges the interest and charges levied on the account. She states that the 1st Defendant charged interest beyond what had been agreed on, imposed or varied interest without proper notice or lawful basis, and applied insurance premiums and penalties in a manner that enlarged the debt and prevented redemption. She also states that the alleged statutory notices were never served on her, her agent or her advocates. 12.The Plaintiff further depones that the 1st Defendant had sold the suit property to Harvest Snacks Centre Limited for Kshs. 12,400,000 on 8th May, 2024, but the sale was later nullified and the deposit refunded. She states that the 1st Defendant thereafter sold the suit property to the 3rd Defendant, Lemaiyen Investments Limited, for Kshs. 12,380,000 by 7 |HCCOMM NO.E009 OF 2025 - RULING public auction, again without proper statutory notices and without proper advertisement. 13.She avers that the valuation relied upon by the Defendants was outdated and grossly understated the true value of the property. She annexed a valuation report by Pioneers Valuers Limited placing the value of the property at approximately Kshs.62,000,000, taking into account the developments made thereon. She therefore contends that the sale was premature, unlawful and fraudulent, and that unless restrained, the Defendants would transfer or further deal with the suit property to her irreversible prejudice. The 1st and 2nd Defendants’ Reply to the first application 14.The 1st Defendant opposed the application through the replying affidavit of Christine Wahome sworn on 11th June, 2025. Although the 2nd Defendant did not place before the Court a separate replying affidavit distinct from the bank’s response, the 1st Defendant’s affidavit and submissions extensively address the role of the 2nd Defendant as the auctioneer instructed by the 1st Defendant. 15.Christine Wahome depones, in substance, that the application is an abuse of the court process. She states that the Plaintiff, directly or through persons described as her proxies, had previously filed or caused to be filed several proceedings 8 |HCCOMM NO.E009 OF 2025 - RULING concerning the same suit property. The matters cited include MCCCMISC No. E061 of 2024, David Ngoi T/A Harvest Snacks v NCBA Bank PLC & Another; Kiambu MCCC E210 of 2024, David Ngoi v NCBA Bank PLC & Another; MCCC E264 of 2024, Harvest Snacks Centre Limited v NCBA Bank PLC & Another; and Githunguri MCCC E057 of 2024, Edwin K. Gichia v Vincent Kimani and NCBA Bank Limited. The 1st Defendant’s position is that the Plaintiff did not make full disclosure of these related proceedings and came to Court with unclean hands. 16.On the facility, the 1st Defendant states that it advanced to the Plaintiff a term loan facility of Kshs.20,722,612.78 vide letter of offer dated 3rd September, 2019. The facility comprised a hire purchase facility of Kshs.5,056,533.78 and a plot purchase facility of Kshs.15,600,000. The 1st Defendant maintains that the Plaintiff voluntarily offered the suit property as security and that a charge was registered over the property on 27th July, 2020. 17.The 1st Defendant avers that the Plaintiff defaulted in repayment. It states that the statutory power of sale crystallised after the Plaintiff failed to regularise the arrears, and that statutory notices were sent to the Plaintiff’s last known postal address as captured in the facility and charge documents. The 1st Defendant refers to the 90 days’ statutory notice dated 21st October, 2021, the 40 days’ notice dated 4th 9 |HCCOMM NO.E009 OF 2025 - RULING February, 2022, certificates of postage, the auctioneer’s redemption notice and notification of sale. It therefore denies the allegation that statutory notices were never issued or served upon the Plaintiff and or her proxies. 18.On valuation, the 1st Defendant states that a valuation of the suit property was done on 3rd May, 2024 by Acumen Valuers, within twelve months prior to the auction, and that the valuation placed the market value of the property at Kshs.16,500,000 and the forced sale value at Kshs. 12,375,000. It contends that the Plaintiff’s valuation of Kshs.62,000,000 is unreliable because, among other things, it allegedly failed to disclose comparable properties and was inconsistent with the title and encumbrance position of the property. 19.On the auction history, the 1st Defendant states that the earlier sale to Harvest Snacks Centre Limited was rescinded because the purchaser failed to comply with the conditions of sale by paying the requisite deposit. The money paid was refunded and the property was re-advertised. The subsequent auction took place on 7th October, 2024, where the 3rd Defendant emerged the highest bidder at Kshs.12,380,000.00 The 1st Defendant states that the 3rd Defendant complied with the terms of sale and that the transfer was completed. 20.The 1st Defendant therefore urges the Court to dismiss the application, contending that the Plaintiff has not demonstrated a prima facie case, that any complaint on interest or valuation 10 |HCCOMM NO.E009 OF 2025 - RULING can be compensated by damages, and that the balance of convenience favours the bank as chargee and the 3rd Defendant as purchaser. The 3rd Defendant’s Reply to the first application 21.The 3rd Defendant opposed the first application through the replying affidavit sworn by Michael Njau Njoroge on 11th April, 2025. He states that he is a Director of the 3rd Defendant and is competent to swear the affidavit on its behalf. 22. The 3rd Defendant’s position is that it saw an advertisement for the sale of Kiambaa/Kanunga/2136 by public auction scheduled for 7th October, 2024 in the Daily People Newspaper on 23rd September, 2024. It attended the auction and submitted a bid of Kshs. 12,380,000.00, which was declared the highest bid. The 3rd Defendant states that its bid deposit of Kshs.500,000.00 was applied towards the purchase price, and that it instructed its advocates to transfer by RTGS the sum of Kshs.11,880,000.00 to the 1st Defendant. 23.The deponent further states that the 3rd Defendant signed a Memorandum of Sale dated 7th October, 2024 with Regent Auctioneers, received a certificate of sale, and thereafter caused the property to be transferred in its favour. It avers that a certificate of title was issued in its favour on 14th January, 2025. The 3rd Defendant therefore maintains that it is 11 |HCCOMM NO.E009 OF 2025 - RULING the lawful registered proprietor and a bona fide purchaser for value without notice. 24.The 3rd Defendant also states that it took possession of the suit property on or about 1st March, 2025 and embarked on establishing beacons, and that this occurred before the suit was filed and before the interim orders of 21st March, 2025 were obtained. It contends that by the time the interim orders were issued, the Plaintiff was no longer in possession of the suit property whose transfer had long been completed. 25.The 3rd Defendant denies privity with the loan contract between the Plaintiff and the 1st Defendant. It argues that any dispute concerning interest, accounts, notices, or the exercise of the statutory power of sale lies between the Plaintiff and the bank, and cannot be used to defeat the 3rd Defendant’s title in the absence of fraud, collusion, or bad faith proved against it. It therefore urges the Court to find that the Plaintiff’s equity of redemption was extinguished upon sale, and that the Plaintiff has not met the threshold for injunction. The Plaintiff’s Further Affidavits in rebuttal 26.The Plaintiff filed two further affidavits sworn on 3rd July, 2025. One response to the 1st and 2nd Defendants’ replying affidavit, and the other response to the 3rd Defendant’s replying affidavits. 12 |HCCOMM NO.E009 OF 2025 - RULING 27.In response to the 1st and 2nd Defendants, the Plaintiff denies that her suit is res judicata or an abuse of process. She depones that she has never instituted any suit against the 1st and 2nd Defendants in relation to the suit property and was not a party to the proceedings cited by the bank. She states that, as chargor, she is entitled to institute proceedings against the chargee where her contractual and statutory rights are violated. She also reiterates that no statutory notices were served on her or on her appointed agents. 28.The Plaintiff further challenges the valuation report relied upon by the 1st Defendant. She states that the Acumen Valuers report fails to account for structural improvements on the property and undervalues both the improvements and the land. She also states that the previous sale to Harvest Snacks collapsed due to non-compliance with the terms of sale, and that the subsequent sale to the 3rd Defendant was marred by similar irregularities. 29.In particular, the Plaintiff points to the 3rd Defendant’s own affidavit and contends that the 3rd Defendant admitted that only Kshs.500,000.00 was treated as the deposit at the fall of the hammer, and that the balance of Kshs. 11,880,000.00 was paid on the following day. She argues that the Certificate of Sale and Memorandum of Sale indicating payment of Kshs.3,095,000.00 as 25% deposit at the fall of the hammer were false and misleading. 13 |HCCOMM NO.E009 OF 2025 - RULING 30.In the further affidavit responding to the 3rd Defendant, the Plaintiff states that the advertisement was not placed in a newspaper of national circulation and that this was part of a deliberate concealment of the sale. She repeats that the 3rd Defendant failed to pay 25% at the fall of the hammer and that the irregularity taints the sale. She also contends that the 3rd Defendant cannot claim to be a bona fide purchaser because the sale was irregular, unlawful and conducted in bad faith. 31.The Plaintiff also addresses the contempt component in that further affidavit. She states that the 3rd Defendant’s director does not deny awareness of the court orders, and that despite such knowledge, the 3rd Defendant allegedly mobilised persons who, with the escort of police officers, entered the property and caused the arrest of her employees. She states that the charge sheet shows that her staff were arrested from the suit property on 22nd March 2025, one day after the interim orders had been served. THE APPLICATION DATED 24TH MARCH, 2025 32.The second application is the Plaintiff’s Notice of Motion dated 24th March, 2025. It is expressed to be brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Sections 3 and 5 of the Judicature Act, Article 159(1) and (2)(d) of the Constitution and all other enabling provisions of the law. The application seeks the following prayers: 14 |HCCOMM NO.E009 OF 2025 - RULING (a) Spent. (b) THAT the Honorable Court be pleased to cite the 3rd Defendants directors Catherine Njeri Njau & Michael Njoroge for contempt of court orders granted by this Honorable Court on 21st March, 2025. (c) THAT Catherine Njeri Njau & Michael Njoroge do stand committed to jail for 6 months or such period as this Honorable Court may determine for contempt of court by willfully violating and/or disregarding the orders made by this Honorable Court on 21st March, 2025. (d) THAT the 3rd Defendant/Respondent having failed to comply with the court order of 21st March, 2025, the court be pleased to order and/or direct the Officer Commanding Kanunga Police Station to offer security, assistance, maintain law and order and secure UNCONDITIONAL ACCESS and in enforcing the Court Order issued on 21st March, 2025.THAT this Honorable Court be pleased to give any further orders and/or directions as it may deem fit and just to grant. (e) THAT costs of this Application be borne by the Respondent. 33. The application is premised on the ground that this Court issued interim orders on 21st March, 2025 restraining the 15 |HCCOMM NO.E009 OF 2025 - RULING Defendants from interfering with the Plaintiff’s ownership and possession of L.R. No. KIAMBAA/ KANUNGA/2136. The Plaintiff states that the order had not been stayed, varied or set aside and therefore remained binding upon the Defendants. 34. The Plaintiff contends that the order was served on both Kiambu and Kanunga Police Stations and also upon the 3rd Defendant through its directors, Catherine Njeri Njau and Michael Njoroge. She alleges that despite service and knowledge of the order, the 3rd Defendant, through representatives or agents, attempted to enter the suit property at about 4.00 a.m. on 22nd March, 2025, and was repulsed by the Plaintiff’s workers. 35. The Plaintiff further alleges that at about 9.00 a.m. on the same day, police officers from Kanunga Police Station stormed the suit property and arrested her workers. She also alleges that later that night, at about 9.00 p.m., police officers accompanied by private guards broke the main gate, gained entry, and abducted or mistreated some of her staff before abandoning them at Ibonia Ngego area at approximately 3.00 a.m. The incident was allegedly reported at Ngego Police Patrol Base. 36. The Plaintiff states that the 3rd Defendant openly disobeyed the court order by taking possession of the suit property and denying her access, and that such conduct threatens the authority of the Court and the rule of law. 16 |HCCOMM NO.E009 OF 2025 - RULING 37. The second application is supported by the affidavit of Cynthia Wambui Njuguna sworn on 24th March, 2025. She depones that on 21st March, 2025, her advocates filed the suit and the application dated 18th March, 2025 under Certificate of Urgency. The Court considered the matter and allowed prayers 1 and 2 of the application, thereby issuing interim injunctive orders. 38. The Plaintiff states that upon obtaining the orders, she instructed a process server to serve the application and the orders on the 3rd Defendant and both Kiambu and Kanunga Police Stations. She relies on an affidavit of service by Mathew Musotsi, who states that he personally delivered documents to the OCS Kanunga and the OCS Kiambu, and served the directors of the 3rd Defendant via WhatsApp through the phone numbers stated in the Affidavit of Service. 39. The Plaintiff then narrates the events of 22nd March, 2025. She states that one of her employees called her at about 4.00 a.m. and informed her that a group had attempted to access the suit property. She instructed one Geofrey Muriithi to report the intended trespass at Kanunga Police Station. She later learnt that police officers arrived at the suit premises at about 9.00 a.m. and arrested nine of her employees despite the existence of the court order. 40. She further depones that at about 9.00 p.m., police officers accompanied by four private security guards broke down the 17 |HCCOMM NO.E009 OF 2025 - RULING main gate and took hostage three other employees, who were allegedly later released at about 3.00 a.m. She states that those employees reported the occurrence at Ngego Police Patrol Base and sought treatment at Kiambu Level 5 Hospital. She therefore asks the Court to cite the 3rd Defendant’s directors for contempt and to order police assistance to enforce the court order. The 3rd Defendant’s Response to the second application. 41. The 3rd Defendant opposed the contempt application through the replying affidavit of Michael Njau Njoroge sworn on 11th April, 2025. He states that the 3rd Defendant purchased the suit property at the auction of 7th October, 2024, that a certificate of title was issued in its favour on 14th January, 2025, and that it took possession on 1st March, 2025. 42. The 3rd Defendant’s answer is that the Plaintiff was not in possession of the suit property when the order of 21st March, 2025 was issued, and that the transfer had already been completed long before the interim order. It further states that on 22nd March, 2025, the Plaintiff allegedly sent a group of rowdy men armed with crude weapons to retake possession thereof of the suit property, and that some of those persons were arrested by police officers. 43. The 3rd Defendant therefore denies being in contempt of court orders. It states that the Plaintiff has not demonstrated 18 |HCCOMM NO.E009 OF 2025 - RULING personal service of the court order in a manner sufficient to sustain a contempt finding, has not proved deliberate disobedience to the required standard, and has not shown that the acts complained of occurred after service of the order or were done by the 3rd Defendant in defiance of the order. WRITTEN SUBMISSIONS 44. The two applications were canvassed by way of written submissions pursuant to court’s directions. The Court has read and considered the Plaintiff’s submissions in support of the application dated 18th March, 2025, the 1st Defendant’s submissions opposing that application, the 3rd Defendant’s submissions opposing that application, the Plaintiff’s submissions in support of the contempt application dated 24th March, 2025, and the 3rd Defendant’s submissions in opposition to the contempt application. Plaintiff’s submissions on the application dated 18th March, 2025 45. The Plaintiff submits that she has satisfied the principles for grant of interlocutory injunction as stated in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358. She argues that she has established a prima facie case because the bank’s statutory power of sale had not lawfully crystallised, the mandatory notices under Sections 90 and 96 of the Land 19 |HCCOMM NO.E009 OF 2025 - RULING Act were not served, the notices were in any event defective, and the auction process was riddled with irregularities. 46. Relying on the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, the Plaintiff submits that a prima facie case exists where, on the material presented, the Court can conclude that a right has apparently been infringed and calls for an answer. She contends that the right infringed is her Equity of Redemption and her right not to have charged property sold unless the chargee strictly complies with the Land Act, the Land Registration Act and the Auctioneers Rules. 47. On statutory notices, the Plaintiff relies on Section 90 of the Land Act, Section 96 of the Land Act, the cases of Nyangilo Ochieng & Another v Fanuel B. Ochieng & 2 Others [1996] eKLR, Stephen Boro Gitiha v Nicholas Ruthiru Gatoto [2017] eKLR, and Elizabeth Wambui Njuguna v Housing Finance Co. of Kenya Ltd [2006] eKLR. She submits that once a chargor alleges non-receipt of a statutory notice, the burden shifts to the chargee to prove service, and that failure to serve a valid statutory notice is not a mere irregularity remediable by damages. 48. On interest, the Plaintiff submits that the 1st Defendant varied interest unlawfully, imposed insurance premiums and charges beyond the secured sums, and thereby inflated the account. 20 |HCCOMM NO.E009 OF 2025 - RULING She relies on section 44 of the Banking Act and the authorities including the cases of Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited [2014] eKLR, Kenya Commercial Finance Company Ltd v Ngeny & Another [2002] 1 KLR, Samaki Industries Limited v Bullion Bank Ltd, and Joseph Muriithi Gichobi v Kenya Commercial Bank Ltd & Another, for the proposition that a lender cannot exercise a discretion to vary interest arbitrarily or oppressively. 49. The Plaintiff also submits that the advertisement was defective because it was published in the People Daily, which she argues is not a newspaper of national circulation. She relies on Regulation 16(2) of the Auctioneers Rules and submits that non-compliant advertisement affects the validity of the sale. 50. On the conduct of the auction, the Plaintiff submits that the 3rd Defendant failed to pay the 25% deposit at the fall of the hammer as required by the conditions of sale. She argues that the 3rd Defendant only converted the Kshs. 500,000.00 bid deposit into a purchase deposit, and that the balance was paid on the following day. She relies on the cases of National Bank of Kenya v John Osumo Ombasa [2015] eKLR and Harrogate Limited & Another v Mwananchi Credit Limited; Mistan Auctioneers (Interested Party) [2023] eKLR, and submits that failure to pay the required deposit at the fall of the hammer is a material irregularity that affects the sale. 21 |HCCOMM NO.E009 OF 2025 - RULING 51. On undervalue and irreparable loss, the Plaintiff submits that the property was sold for Kshs. 12,380,000.00 against her valuation of Kshs. 62,000,000.00. She relies on Section 97 of the Land Act and authorities including the cases of Mbuthia v Jimba, Spero Holdings Limited v Co-operative Bank of Kenya Ltd & Another [2016] eKLR, and Palmy Company Limited v Consolidated Bank of Kenya Limited [2014] eKLR. She argues that the difference is so striking that it raises a serious question on whether the chargee discharged its statutory duty of care. 52. The Plaintiff concludes that damages would not be adequate because the property is unique, the alleged transfer would defeat the substratum of the suit, and the Defendants’ continued acts on the property would alter its character. She therefore asks the Court to preserve the property, inhibit further dealings, order accounts and grant police assistance. The 1st Defendant’s submissions on the application dated 18th March, 2025 53. The 1st Defendant submits that the application is an abuse of the judicial process. It argues that the Plaintiff, directly or through persons close to her, has repeatedly litigated over the same property through several suits in the subordinate courts. It relies on the cases of Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, Zaro Properties Limited v Zamine Properties Limited & 3 22 |HCCOMM NO.E009 OF 2025 - RULING Others [2023] eKLR, Stephen Somek Takweny & Another v David Mbuthia Githare & 2 Others, and Satya Bhama Gandhi v Director of Public Prosecutions & 3 Others [2018] eKLR, for the proposition that the Court has inherent power to prevent misuse of its process. 54. On injunction, the 1st Defendant submits that the Plaintiff has not met the sequential test set out in the case of Giella v Cassman Brown, as restated in the cases of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR and Salama Beach Hotel Limited & 3 Others v Arcuri Ignazio & 2 Others [2020] eKLR. It submits that the Plaintiff has not shown a prima facie case because the facility, charge and default are not denied, and the bank’s statutory power of sale had crystallized. 55. The 1st Defendant submits that all statutory notices were duly served upon the Plaintiff through her last known postal address, being P.O. Box 961-00900, as given in the letter of offer and charge. It refers to the 90 days’ notice dated 21st October, 2021, the 40 days’ notice dated 4th February, 2022, certificates of postage, the redemption notice and notification of sale issued by the 2nd Defendant. It relies on Section 3(5) of the Interpretation and General Provisions Act and the service clause in the charge to submit that registered post was contractually and legally sufficient. 23 |HCCOMM NO.E009 OF 2025 - RULING 56. The 1st Defendant further submits that even if the Court found any notice defective, the proper relief would not be an injunction until the determination of the suit but, at most, an injunction limited to the issuance of a fresh lawful notice. It relies on the case of National Bank of Kenya Limited v Shimmers Plaza Limited [2009] eKLR. 57. On interest, the 1st Defendant submits that a dispute over accounts, interest or penalties is not a ground for restraining a chargee from exercising its statutory power of sale. It cites the cases of Francis J. K. Ichatha v Housing Finance Company of Kenya Ltd [2005] eKLR, Orion East Africa Ltd v Housing Finance Company of Kenya Ltd, Daniel Kamau Mugambi v Housing Finance Company of Kenya Ltd [2006] eKLR, Mohammed Khaled Khashoggi v Equity Bank Limited [2013] eKLR, and National Bank of Kenya Limited v Pipeplastic Samkolit (K) Limited & Another [2001] eKLR. The 1st Defendant argues that the Court cannot rewrite the parties’ bargain and that section 33B of the Banking Act had been repealed. 58. On advertisement, the 1st Defendant submits that the Plaintiff raised the issue of publication in People Daily too late and outside her pleadings. Relying on the cases of Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR and 24 |HCCOMM NO.E009 OF 2025 - RULING Raila Amolo Odinga & Another v IEBC & 2 Others [2017] eKLR, it submits that parties are bound by their pleadings and evidence or submissions at variance with pleadings should be disregarded. 59. On valuation, the 1st Defendant submits that the suit property was valued on 3rd May, 2024 by a licensed valuer, within twelve months before the auction, and that the valuation was proper as provided for under Section 97 of the Land Act. It attacks the Plaintiff’s valuation of Kshs. 62,000,000.00 as unreliable and submits that differences in valuation are differences of professional opinion, not proof of breach of duty. 60. On the auction, the 1st Defendant submits that the earlier sale to Harvest Snacks Centre Limited was properly rescinded for their failure to pay the required deposit, and that the 3rd Defendant fully complied with the conditions of sale at the second auction. It argues that the Plaintiff has not proved any fraud, irregularity or collusion sufficient to justify injunctive relief. It further submits that the Plaintiff can be compensated by damages, if at all, and that the balance of convenience favours the bank, which remains unpaid, and the purchaser, whose title has been completed. The 3rd Defendant’s submissions on the application dated 18th March, 2025 25 |HCCOMM NO.E009 OF 2025 - RULING 61. The 3rd Defendant submits that the Plaintiff’s Equity of Redemption was extinguished upon sale of the suit property by public auction. It argues that the Plaintiff offered the suit property as security and understood that it could be sold upon default. The 3rd Defendant states that it purchased the property at the auction held on 7th October, 2024, paid the purchase price, obtained transfer, and was issued with title on 14th January, 2025. 62. The 3rd Defendant relies on authorities including the cases of Bomet Beer Distributors Ltd & Another v Kenya Commercial Bank Ltd & 4 Others [2005] eKLR and Mbuthia v Jimba Credit Finance Corporation & Another [1986] KLR 1, and submits that once the property is sold by public auction in exercise of a chargee’s statutory power of sale, the chargor’s Equity of Redemption is extinguished and the chargor’s remedy, if any, lies in damages. 63. The 3rd Defendant further submits that the Plaintiff has not met the Giella threshold. It argues that the issues concerning interest, accounts and statutory notices relate to the relationship between the Plaintiff and the 1st Defendant and do not implicate the 3rd Defendant. It submits that it was an innocent purchaser at auction and is protected unless fraud, collusion or bad faith is specifically pleaded and proved against it. 26 |HCCOMM NO.E009 OF 2025 - RULING 64. The 3rd Defendant submits that it took possession of the suit property on 1st March, 2025, before the suit and before the interim order of 21st March, 2025. It contends that the Plaintiff failed to disclose this fact and misled the Court into granting orders that assumed she was in possession. It therefore urges the Court not to restrain a registered proprietor from enjoying possession of its property. 65. The 3rd Defendant concludes that the balance of convenience favours it as the purchaser and current title holder. It asks the Court to dismiss the first application with costs. Plaintiff’s submissions on the application dated 24th March 2025 66. The Plaintiff submits that the 3rd Defendant’s directors are in contempt of the orders issued on 21st March, 2025. She argues that the order was clear and unambiguous because it restrained the Defendants from completing any sale, taking possession, demolishing or destroying developments, appointing receivers, exercising remedies provided for under Section 90(3) of the Land Act, leasing, letting, charging or otherwise interfering with the Plaintiff’s ownership and possession of the suit property. 67. The Plaintiff submits that the order was served upon the directors of the 3rd Defendant by WhatsApp on 21st March, 27 |HCCOMM NO.E009 OF 2025 - RULING 2025, as shown by the affidavit of service. She relies on Order 5 Rule 3 of the Civil Procedure Rules on service upon corporations, and Order 5 Rule 22C on service by mobile- enabled messaging applications. She also relies on the cases of Africa Management Communication International Limited v Joseph Mathenge Mugo & Another [2013] eKLR and Realty Brokers Limited v Mwadi Women Entrepreneurs Ltd & 4 Others [2024] eKLR to submit that directors of a company may be cited where personal service or knowledge is shown. 68. On the applicable test, the Plaintiff relies on Section 5(1) of the Judicature Act, the cases of Mutitika v Baharini Farm Limited [1985] KLR 229, and Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR. She submits that the Court must be satisfied that the terms of the order were clear, the respondents had knowledge of the order, the Respondents breached the order, and the breach was deliberate. 69. The Plaintiff submits that the 3rd Defendant’s directors had knowledge of the order and nevertheless proceeded to take possession, cause the arrest of the Plaintiff’s workers, demolish existing structures, erect a perimeter wall, and continue construction on the suit property. She argues that the 3rd Defendant’s conduct was deliberate, not accidental, and was calculated to defeat the Court’s authority. 28 |HCCOMM NO.E009 OF 2025 - RULING 70. The Plaintiff has relied on the cases of Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] 1 KLR 828 and B v Attorney General [2004] 1 KLR 431, and submits that court orders are not suggestions, and that disobedience of orders strikes at the rule of law. She urges the Court to cite and punish the directors and to grant police assistance to secure compliance. The 3rd Defendant’s submissions on the application dated 24th March, 2025 71. The 3rd Defendant submits that the application for contempt is misconceived. It states that it had purchased the suit property at the auction of 7th October, 2024, had obtained a certificate of title on 14th January, 2025, and had taken possession on 1st March, 2025 before the issuance of the interim order of 21st March, 2025. It therefore argues that it could not have breached an order restraining taking possession of the property in the future when it was already in possession. 72. The 3rd Defendant also submits that the Plaintiff has not proved the essential ingredients of contempt. It relies on the cases of Mutitika v Baharini Farm Limited [1985] KLR 229 and Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR and submits that contempt must be 29 |HCCOMM NO.E009 OF 2025 - RULING proved to a standard higher than ordinary civil proof, though not exactly beyond reasonable doubt. 73. The 3rd Defendant further submits that the Plaintiff has not proved proper service of the order and penal notice upon the directors, nor has she proved wilful and deliberate disobedience. It argues that the affidavit of service is insufficient and that any alleged acts of police officers or other persons cannot be attributed to the 3rd Defendant without cogent evidence. 74. The 3rd Defendant maintains that the persons arrested on 22nd March 2025 were not innocent workers but persons sent by the Plaintiff to retake possession. It therefore asks the Court to dismiss the contempt application with costs. DETERMINATION 75. Having considered the two Applications, the supporting and replying affidavits, the further affidavits, the annexures and the rival submissions, the following issues arise for determination: (a) Whether the first application is an abuse of the court process; (b) Whether the Plaintiff has met the threshold for interlocutory injunctive and preservatory orders; 30 |HCCOMM NO.E009 OF 2025 - RULING (c) Whether the 3rd Defendant and its directors are in contempt of the orders issued on 21st March 2025; and, (d) Who should bear the costs of the applications. 76. On the issue of whether the first application is an abuse of the court process, the 1st Defendant has argued that the Plaintiff, through her father, husband or companies associated with them, has litigated severally over the same property and has therefore abused the court process. In response thereto, the Plaintiff answers that she was not a party to those proceedings and that she cannot be barred from enforcing her own rights as chargor. 77. The doctrine of abuse of process is not confined to the technical requirements of res judicata is provided for under Section 7 of the Civil Procedure Act. The Court retains inherent power under Section 3A of the Civil Procedure Act to prevent its process from being used oppressively, repetitively or in bad faith. In the case of Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, the Court of Appeal emphasised that the judicial process should not be employed for irritation, harassment, annoyance or to obstruct the efficient administration of justice. 78. However, abuse of process, like res judicata, must be applied with care. At this interlocutory stage, the material before the 31 |HCCOMM NO.E009 OF 2025 - RULING Court shows that there were related proceedings involving David Ngoi, Harvest Snacks Centre Limited and Edwin K. Gichia. The Plaintiff denies being a party to those proceedings. However, the Court has not been invited either through a preliminary objection or formal application to determine res judicata on a complete record of pleadings, parties, issues and orders in all the related suits. It would therefore be unsafe to strike out or dismiss the Plaintiff’s application solely on that ground at this stage. 79. That said, previous related proceedings are not irrelevant. They go to candour, the history of the dispute, the risk of parallel litigation and the appropriate breadth of any equitable relief. A party seeking injunction must make full disclosure and must approach the Court with clean hands. I will therefore treat the cited previous proceedings as a relevant caution against granting injunctive orders as sought in those suits or any such order at this interlocutory stage, but not as a complete answer to the Plaintiff’s right to seek preservation of the suit property pending trial. 80. With regard to the issue of whether the plaintiff has met the threshold for interlocutory relief, I wish to state that the jurisdiction to grant a temporary injunction is donated by Order 40 Rule 1 of the Civil Procedure Rules and the Court’s inherent jurisdiction to preserve a property in dispute. The governing principles remain those set out in th case of 32 |HCCOMM NO.E009 OF 2025 - RULING Giella v Cassman Brown & Co. Ltd [1973] EA 358, that is, an applicant must show a prima facie case with a probability of success, demonstrate irreparable injury if the order is not granted, and where the Court is in doubt, the matter is determined on the balance of convenience. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal explained that the three conditions apply sequentially. 81. A prima facie case, as defined in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, is not a case that must succeed at trial. It is a case which, on the material presented, discloses an apparently infringed right requiring an answer. The Court must avoid a mini-trial, but it must not shut its eyes to clear statutory or procedural questions touching on a chargee’s power of sale. 82. In this matter, it is not disputed that the Plaintiff executed a charge over the suit property and that the 1st Defendant moved to realise the security. The contested issues are whether the statutory notices were duly served, whether the account was inflated by unlawful charges and interest, whether the property was properly valued, whether the auction was properly advertised, whether the auction conditions were complied with, and whether the 3rd Defendant’s title is insulated by Section 99 of the Land Act. In my view, these are material issues touching on the legality of the sale process. 33 |HCCOMM NO.E009 OF 2025 - RULING 83. On statutory notices, Sections 90 and 96 of the Land Act impose mandatory requirement for the Chargee to serve the necessary notices before selling the charged land. The Court of Appeal in the case of Nyangilo Ochieng & Another v Fanuel B. Ochieng & 2 Others [1996] eKLR held that once a chargor alleges non-receipt of statutory notice, the burden lies on the chargee to demonstrate proper service. In the case of Stephen Boro Gitiha v Nicholas Ruthiru Gatoto [2017] eKLR, the Court of Appeal stated that a sale conducted without the requisite statutory notice is not a mere irregularity, as it goes to the legality of the sale itself. 84. However, in the present case, the 1st Defendant has produced the statutory notices together with certificates of posting demonstrating that the notices were dispatched through the postal address reasonably known to belong to the Plaintiff/Chargor. In particular, the notices were posted to the postal address supplied by the Plaintiff in the letter of offer, which address formed part of the contractual and transactional documents between the parties. In my view, once a chargee demonstrates that the statutory notices were sent by registered post to the chargor’s last known or contractually provided postal address, and produces certificates of posting in support thereof, the burden shifts to the chargor to show that the address used was wrong, obsolete, or not attributable to him or her. The Plaintiff has not denied that the postal address used by the 1st Defendant was the address contained in the 34 |HCCOMM NO.E009 OF 2025 - RULING letter of offer, nor has she shown that she notified the 1st Defendant of any change of postal address. Her bare denial of receipt, without more, is therefore insufficient to defeat service properly effected through the postal address she herself provided. I am thus accordingly persuaded that the statutory notices were properly served, and the Plaintiff’s contention that service also ought to have been made upon her appointed agent or advocates does not, in the circumstances, invalidate service already effected upon her through her known postal address. 85. On valuation, Section 97 of the Land Act imposes a duty of care upon a chargee exercising power of sale to obtain the best price reasonably obtainable at the time of sale. The duty is real and enforceable, but it is not discharged or breached merely by placing before the Court a rival valuation showing a higher value. Valuation is, by its nature, an expert opinion. Different valuers may arrive at different figures depending on the assumptions made, the state of the property, the comparables adopted, the purpose of the valuation and the date of inspection. The Plaintiff relies on a valuation of approximately Kshs.62,000,000.00, while the 1st Defendant has placed before the Court a valuation showing a market value of Kshs.16,500,000.00 and a forced sale value of Kshs.12,375,000.00. That disparity, though wide, does not by itself establish fraud, illegality or breach of duty at an interlocutory stage. 35 |HCCOMM NO.E009 OF 2025 - RULING 86. At this stage, the court is not sitting as a trial court to choose between two professional valuations without the benefit of oral evidence, cross-examination and full explanation of the respective assumptions. The Plaintiff has not demonstrated, beyond the assertion of undervaluation, that the 1st Defendant failed to obtain a valuation before sale, acted in bad faith, deliberately ignored material improvements, or sold the property at a price so unconscionably low as to impeach the exercise of the power of sale. A complaint on valuation, if ultimately proved, is compensable in damages as contemplated under the Land Act, particularly where the property has already been sold and transferred to a purchaser. 87. On the auction deposit, the Plaintiff contends that the 3rd Defendant did not pay 25% of the purchase price at the fall of the hammer and that only Kshs. 500,000.00 was paid on the auction date. The 1st and 3rd Defendants have disputed the legal consequence of that complaint and maintain that the sale was regular and completed. In my view, the alleged deficiency in the auction deposit, even if arguable, is a matter going to the internal mechanics of the auction and the contractual relationship arising from the conditions of sale. It does not, without more, automatically defeat a completed sale or entitle the chargor to an injunction against a purchaser who has since obtained title. 88. Auction conditions are important, but not every alleged departure from them is fatal to a sale, especially where the 36 |HCCOMM NO.E009 OF 2025 - RULING chargor has not demonstrated fraud, collusion, bad faith or substantial prejudice incapable of being compensated by damages. The Court must be careful not to convert every procedural complaint arising after a statutory sale into a ground for freezing title already transferred pursuant to the chargee’s statutory power of sale. 89. Section 99 of the Land Act gives statutory protection to a purchaser of charged land sold in exercise of a chargee’s power of sale. The section is intended to protect the security and finality of purchases made under statutory sales and to prevent purchasers from being drawn into disputes between the chargor and chargee unless fraud, misrepresentation or other impeaching circumstances are specifically established against the purchaser. The Plaintiff has not placed before the Court material sufficient to show that the 3rd Defendant participated in any fraud, collusion or illegality. The allegations made are principally directed at the 1st Defendant’s exercise of the statutory power of sale. 90. In those circumstances, the Plaintiff’s remedy, if she ultimately proves that the chargee breached its statutory duty in issuing notices, valuing the property, advertising the sale or conducting the auction, lies principally in damages against the chargee. The Court cannot, at an interlocutory stage, lightly interfere with a completed statutory sale and a registered transfer merely because the chargor disputes the process through which the sale was undertaken. 37 |HCCOMM NO.E009 OF 2025 - RULING 91. I am therefore not persuaded that the Plaintiff has established a prima facie case with a probability of success sufficient to warrant a temporary injunction or an inhibition pending trial. The issues raised may be triable, but a triable issue is not, without more, the same thing as a prima facie case for injunctive relief. The Court must still consider whether the Plaintiff has shown a legal right requiring immediate protection by injunction, whether damages would be inadequate, and whether the balance of convenience favours the order sought. 92. On irreparable harm, I accept that land has a unique character. However, uniqueness of land is not an automatic passport to injunction. The suit property was charged as security for a financial facility. By charging the property, the Plaintiff converted it into a commercial security and accepted the risk that, upon default and lawful exercise of the statutory power of sale, the property could be sold to recover the debt. Where charged property has already been sold and transferred, and where the Plaintiff’s complaints are substantially directed at the manner in which the chargee exercised the power of sale, damages are an adequate remedy unless exceptional circumstances are shown. 93. The Plaintiff has not demonstrated that the 1st Defendant would be unable to satisfy an award of damages should the claim ultimately succeed. Nor has she shown that the 3rd Defendant’s title was procured through fraud or unlawful conduct attributable to the 3rd Defendant. It would therefore 38 |HCCOMM NO.E009 OF 2025 - RULING be disproportionate to restrain the registered proprietor from dealing with the property on the basis of allegations which remain contested and untested. 94. On whether the balance of convenience also tilts against the grant of the injunction. The 1st Defendant says it exercised its statutory power of sale. The 3rd Defendant on the other hand says it purchased the property, paid consideration and obtained title. It is noted that the Plaintiff seeks, in substance, to freeze the consequences of an already completed transaction. I find that granting the injunction would expose the 3rd Defendant to substantial prejudice by restraining it from enjoying the incidents of registered ownership before any finding of fraud or illegality has been made. On the other hand, if the Plaintiff ultimately succeeds, her claim can be vindicated by an award of damages against the party found liable. 95. Accordingly, I decline to grant the temporary injunction and inhibition as sought as the Plaintiff has not established sufficient basis for the Court to inhibit dealings with L.R. No. KIAMBAA/KANUNGA/ 2136 pending trial. In my view, all the substantive question touching on the statutory notices, valuation, the auction process, transfer, possession and accounts shall be determined at the trial upon tested evidence. 96. The Plaintiff also seeks an order for accounts to be taken and furnished by the Defendants. The facility and loan relationship between the Plaintiff and the 1st Defendant is admitted. A statement of account is ordinarily within the bank’s custody 39 |HCCOMM NO.E009 OF 2025 - RULING and would assist the parties and the Court in isolating the true financial controversy. However, it is sufficient to direct that, for purposes of case management and expeditious trial, the 1st Defendant furnishes the Plaintiff with an updated and itemised statement of account within a specified period from the date of this ruling. 97. Further, the Plaintiff has sought for an order to issue on security, assistance and maintenance of law and order by the police. However, no basis has been laid for the court to enlist the police in the present civil dispute. Police officers are not civil execution agents, property managers or private security for litigants in civil disputes. Since the Court has declined the injunctive orders sought, there is no consequential order requiring police supervision. 98. On the issue of whether the 3rd defendant and its directors are in contempt of civil orders, I find that the Plaintiff’s Notice of Motion dated 24th March, 2025 seeks to cite the 3rd Defendant and its directors for contempt of the interim orders issued on 21st March, 2025. I wish to state that Contempt is a jurisdiction which exists to uphold the authority of the Court and the rule of law, but because it may result in loss of liberty, this jurisdiction must be exercised with restraint and only upon clear, cogent and precise proof. In the case of Mutitika v Baharini Farm Limited [1985] KLR 229, the Court of Appeal held that the standard of proof in contempt proceedings is higher than proof on a balance of probabilities, though not 40 |HCCOMM NO.E009 OF 2025 - RULING exactly beyond reasonable doubt. In the case of Samuel M. N. Mweru & Others v National Land Commission & 2 Others [2020] eKLR, the Court restated that the applicant must prove the terms of the order, knowledge of those terms, breach of the order and wilfulness or bad faith. 99. The first issue is whether the alleged breach has been proved with the required precision. The interim order issued on 21st March, 2025 restrained the Defendants from completing transfer, taking possession, demolishing or destroying developments, appointing receivers, exercising powers under Section 90(3) of the Land Act, leasing, letting, charging or otherwise interfering with the Plaintiff’s ownership and possession of the suit property. However, the material before the Court shows a serious factual dispute as to when the 3rd Defendant took possession of the said suit property and when the transfer thereof was completed. The 3rd Defendant states that it took possession of this property on 1st March, 2025, before the order. The Plaintiff contends that possession was taken after the order, on or about 22nd March, 2025. That contest cannot be conclusively determined on affidavit evidence between the Plaintiff and the 3rd Defendant alone. 100. It would then be unsafe to make a punitive finding of contempt upon a disputed chronology hence contempt is not a suitable procedure for resolving contested questions of possession, ownership, completion of transfer or the factual sequence of events surrounding an auction sale. 41 |HCCOMM NO.E009 OF 2025 - RULING 101. The second issue is on knowledge and service of the order. The Plaintiff relies on an affidavit of service stating that the directors of the 3rd Defendant were served by WhatsApp through telephone numbers stated in the affidavit, and that the OCS Kanunga and OCS Kiambu were also served. While electronic service is recognised under Order 5 Rule 22C of the Civil Procedure Rules, the party relying on such service must demonstrate, with sufficient clarity, that the order was sent to the correct mobile number, that the number was attributable to the person alleged to have been served, and that the message was successfully transmitted or received. In contempt proceedings, the Court must be slow to infer knowledge where service is disputed and the evidence does not remove reasonable doubt as to actual notice of the precise terms of the order at the time of the alleged breach. 102. The 3rd Defendant disputes the sufficiency of service and maintains that the acts complained of were either done before the order or were not done in disobedience of the order. The Plaintiff has not placed before the Court evidence that irresistibly proves that the directors had actual knowledge of the order before the alleged acts complained of were undertaken. Nor has the Plaintiff particularised, with sufficient precision, what specific act was done by which contemnor, on what date, at what time, and in what manner it violated the terms of the order. General allegations of interference, barricading, occupation, demolition or denial of access, without 42 |HCCOMM NO.E009 OF 2025 - RULING clear proof linking the alleged contemnors to specific post- service acts, are insufficient for contempt of court to be found. 103. The third issue is that of wilful and deliberate disobedience. It is worth noting that even where knowledge of a court order is shown, contempt is not established unless the breach is deliberate and wilful. The 3rd Defendant’s position is that it had already purchased the property, obtained title and taken possession of the same before the order was served. Whether that position is ultimately correct is a matter for trial. However, for purposes of contempt, it provides a plausible answer which weakens the allegation that the 3rd Defendant and its directors deliberately disobeyed the Court. A bona fide dispute on the timing of possession and the legal effect of an already completed transfer should not be converted into a finding of contempt without strict proof. 104. The Court is alive to the principle that court orders must be obeyed unless and until varied or set aside. However, that principle does not relieve an applicant from proving contempt to the required standard. The authority of the Court is not advanced by punishing parties on uncertain facts. Where the evidence leaves doubt as to service, knowledge, timing of possession, the precise acts alleged and wilfulness of breach, the proper course is to decline the punitive orders sought and allow the parties to ventilate the substantive dispute at trial. 43 |HCCOMM NO.E009 OF 2025 - RULING 105. I therefore find that the Plaintiff has not proved contempt against the 3rd Defendant, Lemaiyen Investments Limited, or its Directors, Catherine Njeri Njau and Michael Njau Njoroge, to the required standard. Accordingly, the application dated 24th March, 2025 is found to be without merit. DISPOSITION 106. In the resultant:- a) Save for the prayer seeking statement of accounts, the Plaintiff’s Notice of Motion application dated 18th March, 2025 is hereby declined. b) The 1st Defendant shall furnish the Plaintiff with an updated and itemized statement of account for the facilities secured by the suit property, showing the amounts advanced, the repayments received, interest applied, charges debited and the balance, if any, claimed to be outstanding, within thirty (30) days of this ruling. c) The Plaintiff’s Notice of Motion dated 24th March, 2025 seeking to cite the 3rd Defendant, Lemaiyen Investments Limited and its Directors, Catherine Njeri Njau and Michael Njau Njoroge for contempt of the orders issued on 21st March, 2025 is dismissed. 44 |HCCOMM NO.E009 OF 2025 - RULING d) The cost of the application dated 18th March, 2025 shall be in the cause while the costs of the Notice of Motion application dated 24th March, 2025, shall be borne by the Plaintiff. e) For the expeditious hearing of the main suit, the parties shall take pre-trial directions within fourteen (14) days from the date of this ruling. It is so Ordered. RULING DATED AND SIGNED THIS 16 TH DAY OF AUGUST , 2026. D. O. CHEPKWONY JUDGE RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 19 TH DAY OF AUGUST , 2026. F. N. KYAMBIA JUDGE In the presence of For the Plaintiff - No appearance For the Defendants - Ms Kadie for 1st Defendant Ms Mburu for 3re Defendant Court Assistant – Mr. Muthomi 45 |HCCOMM NO.E009 OF 2025 - RULING