Empeut Resort Limited v Auctioneers & another (Commercial Case E008 of 2024) [2026] KEHC 6783 (KLR) (14 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **COMMERCIAL CASE NO. E008 OF 2024** **EMPEUT RESORT LIMITED.........................……………….APPLICANT** **VERSUS** **KENYA DEVELOPMENT CORPORATION...….……….1STRESPONDENT** **BASELINE AUCTIONEERS…….……………………….2ND RESPONDENT** **RULING** 1. The subject of this ruling are two motions by **Empeut Resort Limited (**hereafter the Applicant), which are dated 11.07.2024 and 9.9.2025 (hereafter the first and second motion, respectively) and brought against **Kenya Development Corporation** and **Baseline Auctioneers** (hereafter the 1st and 2nd Respondent, respectively). The court directed that the motions be heard together. 2. The key live prayer in the first motion, brought under Order 40 Rules 1, 2, 3 and 4, Order 51 Rule 1 of the Civil Procedure 40 Rules (CPR) , Sections 1A, 1B and 3A of the Civil Procedure Act (CPA), Sections 102, 103 and 104 of the Land Act, and Article 40 of the Constitution inter alia, seeks an injunction to restrain the Respondents from inter alia offering for sale, trespassing, alienating, leasing, disposing or utilizing in any manner whatsoever the Applicant’s property being **LR. No. 9923/194** measuring approximately 1.460 Ha., located along Nairobi – Namanga Road, Kajiado County pending hearing and determination of the suit. 3. The motion is based on the grounds on its face as amplified in the supporting affidavit sworn by **Raphael Mainka Seya**, described as a director of the Applicant To the effect that in the year 2012, the Applicant obtained a loan facility in the sum of **Kshs. 30,000,000/-** from the then **Tourism Finance Corporation**, the predecessor of the 1st Respondent; that the facility was to be repaid within ten years and was secured by a charge created over the Applicant’s property known as **LR. No. 9923/194** (hereinafter referred to as the first suit property); that the Applicant diligently serviced the loan until the onset of the Covid-19 pandemic, which severely affected the tourism industry and consequently forced the closure of the Applicant’s operations, leading to default in repayment of the facility; that subsequently the Applicant engaged the 1st Respondent through several correspondences seeking restructuring of the loan facility; and that the 1st Respondent failed to respond to the requests. 4. He avers that he later learned through a third party that the Respondents had advertised the suit property for sale by public auction on 10th July 2024 vide the advertisement marked annexure **“RMS-1**.” The deponent taking issue with the turn of events despite his earlier entreaties swore that despite financial difficulties experienced, the Applicant had made payments amounting to Kshs. 3,000,000/- to the 1st Respondent as a sign of good faith, as demonstrated by copies of cheques exhibited as annexures “**RMS-2 a, b, c and d.”** 5. Asserting that he was not served with the mandatory statutory notices under the Land Act and the Auctioneers Act, he contended that the Applicant had established a prima facie case with a probability of success and that unless the Court intervened, the Applicant stood to suffer suffer irreparable damage incapable of compensation by way of damages, while the suit itself would be rendered nugatory. 6. In opposition to the first motion, the 1st Respondent filed an affidavit in reply dated 9.09.2024 through **Michael Reimoi Koross**, described as an Assistant Manager in the Portfolio Management Department of the said Respondent. The deponent stated that the 1st Respondent was the successor of the former Industrial and Commercial Development Corporation, Tourism Finance Corporation, and IDB Capital Limited following all merged in 2021 under the Kenya Development Corporation Limited (Vesting) Order. 7. Accusing the Applicant of material non-disclosure and approaching the court with unclean hands, the deponent states that the Applicant was advanced a loan facility of Kshs. 30,000,000/- by the former Tourism Finance Corporation pursuant to a letter of offer dated 9th December 2010; that the facility was secured by among other securities, a first legal charge over the suit property, a supplemental charge over **L.R. Ngong/Ngong/5171** (hereafter the second suit property), a fixed and floating debenture over the company’s movable assets, and directors’ personal guarantees; and that the charges were duly registered to secure repayment of the principal loan together with interest following which the loan was disbursed in two tranches of Kshs. 20,000,000 in April 2011 and Kshs. 10,000,000 in September 2011. 8. The deponent further swore that the Applicant defaulted in repayment of the facility long before the Covid-19 pandemic, having only made repayments amounting to Kshs. 11,682,258/- by way of inconsistent monthly instalments, ending with a payment of Kshs. 300,000/- made in April 2019; that as of 30th July 2024, the outstanding loan balance stood at Kshs. 57,726,031/- which continues to accrue interest; and that the chargee had repeatedly notified the Applicant of the arrears through various correspondences and notices. 9. Disputing the Applicant’s contention that statutory notices were never issued, the deponent stated the chargee fully complied with the law by issuing and serving all requisite notices, including the statutory notice dated 15th December 2015 under Section 90 of the Land Act, a 40-day redemption notice issued by Cotoow & Associates Advocates on 28th April 2016, and a 45-day notification of sale issued by Baseline Auctioneers on 22nd April 2024. Which notices were served through registered post, physical posting on the suit property, and WhatsApp communication. He also avers that the suit property was professionally valued, yielding a forced sale value of Kshs. 93,000,000, before being advertised for sale by public auction scheduled for 12th July 2024. 10. The deponent further asserts that the Applicant had, on several occasions, acknowledged receipt of the statutory notices and engaged the 1st Respondent in negotiations for restructuring and repayment of the loan citing previous correspondence exchanged between the parties, including restructuring proposals and negotiations dating back to 2016, 2017, 2018, and 2019. He therefore contends that the Applicant is dishonest in alleging non-service of notices and further accuses the Applicant of forum shopping and abuse of the process of the court, citing several suits previously filed by the Applicant against the charge seeking injunctive relief against realization of the security, including **Kajiado ELC No. E029 of 2024, Kajiado MCCMISC No. E033 of 2024,** and **Kajiado HCCC No. 13 of 2018**. 11. Contending that the Applicant had failed to establish a prima facie case warranting the grant of an injunction he asserted that continued delay in realization of the security is prejudicial to the chargee as the debt continues to accrue interest, whereas the chargee had exercised considerable restraint towards the Applicant over the years. And stating that the balance of convenience tilts in favour of the 1st Respondent, he urged the Court to dismiss the motion. Or alternatively, if an injunction was granted, an order be made to compel the Applicant to deposit the outstanding loan amount in a joint interest-earning account operated by the parties’ advocates. 12. In the supplementary affidavit sworn on 15th October 2024, **Raphael Mainka Seya**, on behalf of the Applicant, the deponent reiterated the contents of his earlier affidavit sworn on 11th July 2024 in support of the first motion. And asserting that the replying affidavit of 1st Respondent was riddled with contradictions and misconceptions intended to mislead the Court, denied that the Applicant was guilty of material non-disclosure while admitting the contents of paragraphs 6 to 12 of the replying affidavit. Further denying the averments contained in paragraphs 13 to 20 of the replying affidavit he reiterated the contents of paragraph 3 of the supporting affidavit relating to the circumstances leading to default in repayment of the loan facility, while disputing the asserted arrears of Kshs. 57,726,031/- which sum he described as exorbitant, baseless and almost rivalling the principal loan amount. 13. Further denying the contents of paragraphs 22 and 23 of the replying affidavit he stated that despite the financial difficulties the Applicant had made payments amounting to Kshs. 3,000,000/- as a sign of good faith. In response to paragraphs 24 to 33 of the replying affidavit, the deponent maintained that the he was never served with the mandatory statutory notices required by law while dismissing the valuation report dated 2nd July 2024 as reflecting a gross undervaluation of the suit property. 14. The record shows that on 12.07.2024, the court **(Mutuku J**) had granted exparte interim injunctive orders to last until 16.07.2024 when directions would be issued. On that date, the interim orders were extended as directions were issued on the first motion which was stood over to 18.09.2024. The record further shows that on the latter date, the court extended time for the parties to file written submissions and upon hearing the application made by the Applicant’s counsel to extend interim orders, which counsel for the 1st Respondent opposed, the court set a mention for 28.10.2024, and did not extend the interim orders. This was followed by a hiatus of several months until 28.05.2025 the matter was mentioned, when the Applicant’s newly appointed counsel sought time to acquaint himself with the matter whereupon the court stood over the matter to 22.10.2025. However, before that date, the Applicant moved the court via the second motion which the court will now turn to. 15. The second motion was brought under the High Court vacation rules and is expressed to be brought under Order 40 Rules 1,2,3,4 of the CPR inter alia and contains prayers for temporary injunctive orders to restrain the 1st Respondent Respondents from inter alia offering for sale, trespassing, alienating, leasing, disposing or utilizing in any manner whatsoever the Applicant’s property being **LR. No. 9923/194** (the first suit property) ***‘’and LR Ngong/Ngong/ 51 as set out in the Redemption Notice and Notification of Sale dated 24th July 2025’’.*** 16. The second motion was supported by an affidavit sworn by **Raphael Mainga Ole Seya** and was to the following effect. That on 12th July 2024, the court issued interim injunctive orders restraining the Respondents as sought in the first motion pending the hearing and determination of the same. The deponent further swore that despite the subsisting court orders, the 1st Respondent had instructed Regent Auctioneers to proceed with the auction of the first suit property together with a property described as **LR No. Ngong/Ngong/51**, the latter which the Applicant contended was not charged in favour of the 1st Respondent. He exhibited a redemption notice dated 24th July 2025 indicating that the said properties were scheduled for sale by public auction. According to the affidavit, the intended sale of the second stated asset was unlawful as the 1st Defendant was bereft of any lawful interest or statutory power of sale over it. 17. The deponent contended that the intended auction was unlawful and amounted to blatant disobedience of the court orders issued on 11th July 2024, with a view to defeating the due process of the court and to undermine the pending application. He further stated that unless the court intervened, the Applicant would suffer irreparable loss and damage, including loss of the suit property through the impugned redemption notice and notification of sale, which loss cannot be adequately compensated by an award of damages. He therefore urged the court to issue temporary orders in order to preserve the subject matter and maintain the status quo pending the hearing and determination of both the application and the main suit. 18. Pausing here, the record shows that on 12.09.2025 the court (**Lolwatan J)** granted ex parte interim injunctive orders pending directions before me on 22.10.2025 and that the motion be served. On the latter date, the court directed that the two motions be heard together, that responses and written submissions be filed, to facilitate ruling on 2.04.2026, while granting an order to maintain the status quo. 19. Once more, the second motion was opposed by the replying affidavit sworn by **Michael Reimoi Koross**, the Assistant Manager, Portfolio Management in the 1st Respondent. Adopting the contents of his replying affidavit to the first motion, he averred that the interim orders obtained by the Applicant on 12th September 2025 were secured through material non-disclosure and intentional misrepresentation to the court. Recounting the procedural history of the matter, he and stated that the interim orders issued on 12th July 2024 in respect of the first motion to restrain the 1st Respondent from exercising its statutory power of sale over the first suit property were only extended up to 18th September 2024 and thereafter lapsed. That by failing to disclose this fact by the second motion, the Applicant’s conduct amounted to an abuse of the court process. 20. Moreover, the deponent asserted that the Applicant is barred by the doctrine of res judicata from recanvassing issues already determined in previous proceedings. The deponent stating that the Applicant had engaged in forum shopping by filing several suits in different courts seeking similar injunctive reliefs against the 1st Respondent’s exercise of statutory power of sale. Here citing previous causes filed before the Kajiado courts, including **Kajiado ELC No. E029 of 2024, Kajiado MCCC Misc. No. E038 of 2024, and Kajiado HCCC No. 13 of 2018**, all arising from the same dispute. And pointing out that the courts handling previous litigation had either declined to grant injunctions or dismissed the applications after finding that the Applicant had failed to establish a prima facie case. 21. On the substance of the dispute, the deponent rehashed the history of the dispute by stating that the 1st Respondent advanced a loan facility of Kshs. 30,000,000/- to the Applicant under a letter of offer dated 9th December 2010; that the facility was to be repaid within ten years at an interest rate of 9% per annum; and that the loan was secured by a legal charge over **LR No. 9923/194 Kajiado** (first suit property) and a supplemental charge over **LR No. Ngong/Ngong/5171** (hereafter the second suit property), together with a debenture over the company’s movable assets and directors’ guarantees. 22. He exhibited copies of the registered charge documents and supporting registration records to demonstrate that the second suit property was lawfully charged in favour of the 1st Respondent and stated that the charge was duly registered on 17th March 2011 and remained valid and enforceable. He further exhibited correspondence from Cootow & Associates Advocates confirming that although the encumbrance had initially not appeared in the registry records, the charge in favour of the 1st Respondent still subsisted and the 1st Respondent was entitled to exercise its statutory power of sale. 23. Further restating the fact of default by the Applicant in repayment of the loan facility, he asserted that the 1st Respondent’s right to exercise its statutory remedies under the charge instruments and the Land Act had accrued. Adding that statutory notices, including notices of intention to sell and redemption notices, were duly issued and served upon the Applicant, who had in previous proceedings admitted receipt of the statutory notices, he rejected the Applicant’s allegation that the notices were defective or unlawful and maintained that the Respondents fully complied with the legal requirements governing realization of securities. 24. With regard to previous litigation, the deponent specifically highlighted proceedings culminating in the ruling delivered on 30.08.2018 in **Kajiado** **HCCC No. 13 of 2018**, by which the court dismissed a similar application for injunction upon finding that the Applicant had failed to establish a prima facie case and that the indebtedness was not disputed. The deponent citing the ruling asserted that the 1st Respondent cannot be further restrained from the exercise of its lawful statutory power of sale while the Applicant remained in default. 25. In conclusion, asserting that the intended realization of the securities is lawful and based on a crystallized statutory right arising from the Applicant’s admitted default, the deponent urged the court to dismiss both motions and in the alternative, that if the court were inclined to grant any relief, to impose the condition that the Applicant ought to first deposit the outstanding loan balance into a joint interest-earning account operated by the parties’ advocates pending determination of the suit. 26. By his supplementary affidavit dated 18.3.2026, **Raphael Mainga Seya** disputed the allegation that the interim orders issued in July 2024 had lapsed, and cited the court proceedings 16th July 2024, when the court expressly ordered that the interim orders be extended, and on 18th September 2024 when he claims the court did not indicate that the orders had lapsed. Thus, according to him, the Respondents deliberately misled the court by asserting that the orders had lapsed, and had proceeded with the auction process despite the subsisting injunctive orders. 27. Stating that the present application was triggered by the redemption notice and notification of sale dated 24th July 2025 which referred to **LR No. Ngong/Ngong /51**, thereby creating confusion as to which property was intended to be sold, the deponent pointed out that while the Respondents rely on **LR No. Ngong/Ngong/5171** as the charged property, the notification of sale also refers to **LR No. Ngong/Ngong/51**, the latter which according to him had never been charged to the 1st Defendant. Accusing the Respondents of intentionally avoiding to address this inconsistency in their response. 28. Further the deponent disputed the Respondents’ assertion that there existed a valid and enforceable charge over **LR No. Ngong/Ngong/5171,** by exhibiting official search documents which, according to him, confirm that there is no registered charge or encumbrance against the title in favour of the 1st Defendant. He therefore maintained that the 1st Respondent had no lawful basis to exercise a statutory power of sale over that property. 29. Adding however that he had previously offered the suit property to the 1st Respondent as security in order to obtain additional funding to complete the project, but the request for further financing was declined, as demonstrated in the annexed correspondence exchanged between the parties concerning the said request and further seeking restructuring of the loan facility. He also referred to letters exchanged in 2013 and 2018 showing attempts by the Applicant to negotiate repayment arrangements and revive the project after the downturn in the tourism sector and economic difficulties experienced during that period. 30. Delving further into the proposed auctioning of the two suit properties, the deponent cited the valuation report commissioned in 2024 showing in respect of the first suit property, a market value of approximately Kshs. 124,000,000/- and a forced sale value of Kshs. 93,000,000, which he asserted exceeded the alleged outstanding loan amount of about Kshs. 57 million. He therefore contended that the intended simultaneous realization of both the first and second suit properties was both oppressive and unnecessary. 31. Finally, describing the actions of the 1st Respondent as tantamount to an attempt to defeat the court process and undermine the existing injunctive orders, he urged the court to allow both the first and second motion. **Submissions** 1. Despite directions given for the canvassing of the motions by way of written submissions, only the Applicant complied by filing two sets of submissions dated 15.10.2024 and 11.05.2026. There are no submissions on the CTS portal by the Respondents. 2. The Applicant’s submissions dated 15.10.2024 relate to the first motion. Therein counsel restates the affidavit material supporting the first motion and identified the sole issue for determination to be whether the Applicant had satisfied the conditions for grant of a temporary injunction. Anchoring his arguments on Order 40 Rule 1(a) and (b) of the Civil Procedure Rules, 2010 which empowers the Court to grant temporary injunctions where property is in danger of being wasted, alienated or wrongfully sold, counsel relied on the principles enunciated in the celebrated case of **Giella versus Cassman Brown & Company Limited (1973) E.A. 358**. To the effect that a successful applicant seeking a temporary injunction must demonstrate a prima facie case with a probability of success, the likelihood that the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages if the relief is not granted, and that if the Court was in doubt, to decide an application on the balance of convenience. 3. Relying on the definition of a prima facie case in **Mrao Ltd versus First American Bank of Kenya Ltd & 2 Others [2003] KLR 125,** counsel contended that the 1st Respondent had failed to comply with the mandatory provisions of Sections 90 and 96 of the Land Act as well as Rule 15(d) of the Auctioneers Rules requiring that a 90-day statutory notice, 40-day notice to sell, and 45-day redemption notice be served upon the Applicant before the intended sale of the suit property. In support of the argument on the necessity of statutory notices, the Applicant cited among others **Yusuf Abdi Ali Co. Ltd versus Family Bank Limited [2015] eKLR,****Nyagilo Ochieng & Another versus Fanuel Ochieng & 2 Others, Civil Appeal No. 148 of 1995 [1995-1998] 2 EA 260.** For the proposition that the dominant purpose of the Land Act is to accord a chargor reasonable opportunity to redeem his property in line with Article 40 of the Constitution, and that the provisions oblige the chargee to serve, by registered post, the relevant statutory notice before exercising its statutory power of sale. 4. Restating the Applicant’s contention that it only became aware of the intended sale through a friend after the advertisement had already been published, counsel stated that although the 1st Respondent asserted service by registered post, no certificate of posting or proof of delivery was produced, once more citing **Nyagilo Ochieng & Another versus Fanuel Ochieng & 2 Others**[supra]in support of the submissionthat failure to strictly comply with statutory notice requirements invalidates the exercise of the statutory power of sale. And that upon a chargor disputing service of statutory notices, the burden shifted to the chargee to prove service, as held in **Khan & Another versus Habib Bank AG Zurich & Another [2022] KEHC 130 (KLR).** 5. On the aspect of irreparable harm, the Applicant which cited **Joseph Siro Mosioma versus Housing Finance Company of Kenya Ltd & 3 Others [2008] eKLR**, to submit that damages are not an automatic remedy where there has been a clear breach of the law. Further placing reliance on **Pius Kipchirchir Kogo versus Frank Kimeli Tenai [2018] eKLR,** concerning the requirement to prove irreparable damage, counsel contended that the suit property comprises the Applicant’s business premises into which substantial investments have been made and that sale thereof would occasion irreparable loss incapable of compensation by damages. 6. Further asserting that allowing the sale to proceed despite alleged non-compliance with mandatory statutory procedures would amount to sanctioning an illegality. And finally, on the balance of convenience, counsel relied on the statement in **Pius Kipchirchir Kogo versus Frank Kimeli Tenai [2018] eKLR,** that in determining the balance of convenience the court considers which party stands to suffer greater hardship depending on whether an injunction is granted or denied. And stating that in this case the balance of convenience tilts in favour of the Applicant. 7. In summation, counsel urged the court to find that it has satisfied the threshold for the grant of a temporary injunction and to allow the motion dated 11th July 2024 with costs. 8. By his submissions dated 11.05.2026 in respect of the second motion, counsel for the Applicant identified and addressed two issues, namely whether there was a court order of injunction subsisting at the time the notice of redemption and notification of sale dated 24.07.2026 were issued, and whether the notices were defect and effect thereof. 9. On the first issue, it was argued that since the interim orders were extended indefinitely on 16.07.2024, the orders continued to subsist as the court did not explicitly reject the application made by counsel for the Applicant on 18.09.2024 to extend them or vacate the order. 10. Concerning the impugned notices dated 24.07.2025 it was asserted that they were patently illegal, having been issued in contravention of a subsisting order; that the statutory notice under Section 90(1) of the Land Act differed from the impugned redemption notice and notification of sale in that the former notice only related to the first suit property whereas the latter two notices included the first suit property and **LR Ngong/Ngong/51** which had never been charged in favour of the 1st Respondent, and; moreover the charge in respect of the second suit property had never been perfected. 11. Counsel therefore submitted that the redemption notice and notification of sale dated 24.07.2025 were incurably defective and citing **National Bank of Kenya vs Shimmers Plaza Limited (2009) eKLR** and **Margaret Nandako Wafula vs James Simiyu Wanyonyi & 4 Others (2009) KEHC 1590 (KLR)** asserted that the Applicant had demonstrated a prima facie case in respect of both motions urged the court to grant the first and second motion. **Analysis and Determination** 1. The court has considered the material canvassed in respect of the two motions, and the sole question falling for determination is whether the Applicant has brought its case within the principles that govern the grant of interlocutory injunctive relief. 2. Before delving into the merits of the motions the court finds it apposite to highlight some of the pertinent background to the present case. The dispute emanates from the admitted loan facility in the cumulative sum of Kes. 30,000,000/- advanced to the Applicant by the 1st Respondent sometimes in 2010 and which was secured by several securities. It is not in dispute that following the Applicant’s admitted default, the parties exchanged various correspondence and were before the present case involved in litigation initiated by the Applicant when the 1st Respondent made attempts to realize the securities. 3. The litigation included **Kajiado HCCC No. 13 of 2018**, **Kajiado ELC No. E029 of 2024** and **Kajiado MCCC Misc. No. E038 of 2024**, all brought to prevent the charge from realization of the charged securities, based on different grounds. Of particular significance is **HCCC No. 13 of 2018**. In that case, by a motion dated 15.05.2018 the Applicant sought a temporary injunction to restrain the 1st Respondent from *’’selling by public auction , transferring , alienating and/or interfering in whatsoever manner with the Applicant’s land parcels LR. Ngong/Ngong/5171 and LR. No. 9923/194/Kajiado pending hearing and determination of the suit herein’’.* 4. From a perusal of the court file and reading of the ruling delivered on 30th August 2018, by **Nyakundi J** on that motion, it is apparent that the key issues raised by the Applicant included a challenge concerning the valuation assigned to the first and second suit properties which the chargee intended to sell by way of the public auction that the Applicant was by the motion seeking to stop. Other issues raised concerned the issuance of notices under Section 90 and 96 of the Land Act which the Applicant claimed he had not received while admitting receipt of certain demand letters and notifications of sale upon visiting the offices of the charge following his default . 5. The court addressed itself to the question of the statutory notices issued under Section 90 and 96 of the Land Act issued in 2015 and 2016 respectively, the redemption notice and notification of sale issued in 2018 in its ruling. And having found that the Applicant had failed to demonstrate a prima facie case stated that the mortgagee’s statutory power of sale had crystallized upon default and *“nothing short of actual payment of the amount due and owing …is sufficient cause to injunct the mortgagor from recovering the mortgage debt*.’’ And with that dismissed the motion by the Applicant. 6. **HCCC 13 of 2018** was never prosecuted and on 17.07.2020 dismissed for want of prosecution. After a hiatus of about six years, the Applicant once more approached the court in the present suit, arising from the same subject matter and the two motions now before the court. 7. The court has considered the rival affidavit material and submissions canvassed in respect of the motion. The court proposes to deal with the first and second motions simultaneously. The key question to be determined is whether the Applicant has brought its case within settled principles that govern the grant of interlocutory injunctions. The court’s power to grant temporary injunctions is donated by Order 40 Rules 1 and 2 of the Civil Procedure Rules. 8. It is trite that injunctions are equitable remedies issued in the exercise of the court’s discretion. In **Orion East Africa Ltd v Ecobank Ltd and Another [2015] e KLR** that**:** “**In an application for an interlocutory injunction it is good practice for the trial court to look at the whole case, not only to strength of the Applicant but also to the strength of the defence advanced by the Respondent, then make an appropriate order. In Hubbard v Vosper [1972] I ALL ER, 1023 at page 1029 Lord Denning MR, in setting aside an interlocutory injunction granted by a trial court stated:** ***“We are told that practitioners have been treating these cases as deciding that, if the Plaintiff has an arguable case, an injunction should be granted so that the status quo may be maintained. The judge was so told in the present case, and that is why he granted the injunction.*** ***I would like to say at once that I cannot accept the proposition stated in those two cases. In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done. Sometimes, it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint on the Defendant but leave him free to go ahead.”*** 1. The now settled principles governing the grant of interlocutory injunctions were spelt out in **Giella v Cassman Brown & Co. Limited [1973] EA 358** [supra] as reiterated in **Nguruman Limited v Jan Bonde Nielsen & 2 Others** **[2014] eKLR.** 2. The latter decision is particularly illuminating. In that case, the Court of Appeal described the role of the court in an application seeking temporary injunction to be merely to consider whether the principles for the grant of the interlocutory injunction were met. The Court further observing that: **“...Since the fundamentals about the implications of the interlocutory orders of injunctions are settled, at least over four decades since Giella’s case, they could neither be questioned nor be elaborated in detailed research. Since those principles are already ...... by authoritative pronouncements in the precedents, they may be conveniently noted in brief as follows:** **In an interlocutory injunction application, the Appellants 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.** **c.** **allay any doubts as to (b) by showing that the balance of convenience is in his favor.”** 1. The Court explained further that the three conditions above apply separately as distinct and logical hurdles to be surmounted sequentially by an applicant. Such that, it was not enough for the applicant to establish a prima facie case, they must further successfully establish irreparable injury, that is, injury for which damages recoverable at law could not be an adequate remedy. And where there is doubt as to the adequacy of damages, the Court will consider the balance of convenience. Conversely, where no prima facie case is established, the court need not consider irreparable injury or the balance of convenience. The Court of Appeal emphasized that the standard of proof is to prima facie standard. 2. Thus, questions falling to be answered here are whether the Applicant has established a *prima facie* case with a probability of success; the possibility of suffering irreparable injury incapable of being compensated by damages if the orders sought are denied; and that the balance of convenience tilts in her favour, if the second consideration is in doubt. 3. In the case of **Mrao Limited v First American Bank of Kenya and 2 Others (2003) KLR 12**5[supra], the Court of Appeal defined what amounts to a prima facie case as follows: **“A prima facie case in a civil case includes but is not confined to a “genuine or arguable” case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”** 1. There is no dispute that the Applicant obtained the loan facility of Kshs. 30,000,000 from the predecessor of the 1st Respondent in 2010. The facility was secured by legal charges created over the first and second suit properties together with other securities, a fact asserted by the Applicant in **HCC No. 13 of 2018** and in the first motion. That notwithstanding, the Applicant by his material supporting the second motion appeared to dispute that the second suit property was indeed charged in favour of the 1st Respondent and or that the charge was valid. 2. Equally, it is evident that the Applicant has been in default since 2015 based on his own material in **HCC No. 13 of 2018** and some of his correspondence to the 1st Respondent exhibited before the court. Indeed, contrary to his assertions in this matter, from the proceedings in **HCC No. 13 of 2018**, it is evident that the default commenced long before the Covid-19 pandemic to which the Applicant now attributes its financial distress. That being said, there is no dispute that the debt owed to the mortgagee remains unpaid, and currently stands at over Kes. 57,000,000/- odd and that the 1st Respondent has in the past made several unsuccessful attempts to realize the securities. 3. In the present proceedings, the Applicant once again seeks to challenge the recovery process principally on grounds *inter alia* that statutory notices under Section 90 and 96 of the Land Act were not served. However, this question substantially arose and was addressed in the earlier proceedings before **Nyakundi J.** The Applicant cannot be permitted to reopen issues that were substantially canvassed and determined therein by reframing them. The 1st Respondent’s material before court (annexures **MRK8-11)** to the affidavit sworn in reply to the first motion) demonstrates that several statutory notices were indeed issued. These include the statutory notice dated 15th December 2015 under Section 90 of the Land Act, the August 2016 notice under Section 96 of the Land Act, as well as the notice under Auctioneers Rules in April 2024. Evidently leading to subsequent engagements between the Applicant and the 1st Respondent as the former sought restructuring of the loan and other accommodations. 4. A series of correspondence between the 1st Respondent and the Applicant over several years since 2015 was exhibited as annexures **MRK 4-7** regarding the restructuring proposals by the Applicant to the 1st Respondent in response. The notices were on the face of it sent to the postal address of the Applicant, and while corresponding certificates of posting were not tendered here by the 1st Respondent, there is a copy of the certificate of posting (**part of annexure MRK 11**) in respect of the redemption notice dated 22.04.2024 (part of annexure **MRK 11**) in the Applicant’s material bespeaking service. 5. Be that as it may, the issue concerning service of prior statutory notices under Section 90 and 96 of the Land Act was already determined in the ruling of **Nyakundi J** in **HCC No. 13 of 2018**. Nothing turns on the complaint based on non-service of statutory notices under Section 90 and 96 of the Land Act or the redemption notice under the Auctioneers Rules, therefore. 6. In the second motion the Applicant asserted that the notices dated 24.07.2025 were defective because they issued during the subsistence of injunctive orders of this court and also included a property not charged in favour of the 1st Respondent, namely **Ngong/ Ngong/ 51**. However, upon clarification made by the 1st Respondent that the second property intended for sale was **Ngong/ Ngong/5171**, the Applicant proceeded to raise new challenges on the basis that the said property was not part of the securities for the outstanding loan facility or that the said charge was invalid, and that the said property was not included in the notice under Section 90 of the Land Act issued earlier. 7. From the material before the court, it is patently clear that there was an error in the impugned notice of redemption and notification of sale dated 24.07.2025 (Applicant’s annexure **RMS 3**). The title details in respect of the second security appear incomplete. Based on the material tendered on both sides, the correct particulars of the second suit property ought to be **LR. Ngong/ Ngong 5171**. In **HCC No.13 of 2018** it was the Applicant’s case that the said property comprised securities charged to the bank. 8. No challenge was raised at the time to the effect that the 90-day statutory period did not specifically refer to that security and that therefore the then proposed auction of the first and second suit properties under the said notice was unlawful. The contents of notices issued under Section 90 of the Land Act are prescribed by subsection 2 thereof and on the face of it the impugned notice was compliant. Besides, the Applicant ought to have raised that matter in **HCC No. 13 of 2018.** 9. No party ought to be allowed to approbate and reprobate, or to litigate in instalments by recasting, refining or improving on his initial case in subsequent litigation arising from the same subject matter. In the circumstances of this case, the court finds that the defect in the particulars in respect of the second suit property contained in the notice of redemption and notification of sale dated 24.07.2025 amounts to a curable procedural error. However, in light of the longstanding default by the Applicant, the most proportionate remedy for the 1st Respondent’s erroneous notices under the Auctioneers Rules, in the court’s view, cannot be an injunction against the said Respondent. See **National Bank of Kenya v Shimmers Plaza Ltd [2009] e KLR** and **Labelle International Ltd v Fidelity Commercial Bank and Another (2003) 2 EA 541**. 10. As regards the alleged subsistence as of 24.07.2025 of orders issued by **Mutuku J** on 12.07.2024 and extended on 16.07.2024, the court record speaks for itself. On that date, the court extended time for compliance with directions to file written submissions, and having heard both counsel present on the prayer by counsel for the Applicant seeking extension of interim orders, which was opposed by counsel for the Respondent, only made an order to schedule the matter for mention on 28.10.2024. 11. The interim orders were not extended, and the argument made here that the orders of 16.07.20424 remained in force notwithstanding the above proceedings make nonsense of the application by counsel for the Applicant for extension of the interim orders at the close of proceedings on 18.09.2024. The orders of 18.09.2024 require no analysis or interpretation: the interim injunctive orders were not extended. That the Applicant subsequently predicated the second motion on what is patently a false premise to obtain interim orders borders on abuse of the process of the court, and is reprehensible. 12. Equally unpersuasive is the Applicant’s contention that realization of both securities is oppressive because the forced sale value of one property allegedly exceeds the outstanding loan amount. A chargee is entitled to realize securities lawfully offered by a chargor upon default, provided the realization process complies with the law. The court cannot rewrite contractual arrangements voluntarily entered into by the parties. Upon default by a chargor and subject to compliance with statutory requirements, the chargee’s power of sale crystallizes entitling the charge to realize the securities available to recover the outstanding debt. 13. In the result, the court is not persuaded that a prima facie case has been demonstrated. 14. The Applicant has asserted that it will suffer irreparable harm if the suit property is sold. It is settled that once property is offered as security, it becomes a commodity for sale upon default. It appears from the Applicant’s material that the value of the subject properties is capable of quantification and any injury arising from realization therefore compensable in damages. The 1st Respondent being a financial institution would be capable of making good any award of damages as may eventually be made against it. Hence there is no demonstration here of the likelihood of irreparable harm. 15. Moreover, the balance of convenience tilts in favour of the 1st Respondent. The debt continues to grow as the Applicant remains in admitted default since 2015. The 1st Respondent, being a public corporation is entitled to recover public funds advanced to borrowers and should not be restrained, save on solid legal grounds. Continued restraint against the exercise of its statutory power of sale would occasion substantial prejudice to the 1st Respondent while appearing to reward persistent default by the Applicant and legal costs arising from multiplicity of litigation. 16. Courts are wary of granting temporary injunctions in favour of chargors where it appears that the debt in question may continue to grow and eventually outstrip the value of the property charged, thereby exposing the chargee to more losses. See **Christopher Muroki v Housing Finance Company of Kenya and Another [2006] e KLR** and **Andrew M. Wanjohi v Equity Building Society Ltd and Another [2006] e KLR.** 17. In **Orion East Africa Ltd v Eco Bank Kenya Ltd (**supra**)** the Court of Appeal spelt out the circumstances in which a mortgagee may be restrained from exercising its statutory power of sale by stating: - **“The circumstances in which a mortgage may be retrained from exercising its statutory power of sale are set out in Halsbury’s Laws of England, volume 32 (4th Edition) paragraph 725 as follows:** **“725. When mortgage may be restrained from exercising statutory power of 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 began 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 mortgagee claims to be due to him, unless, on the terms of the mortgage, the claim is excessive’’.** 1. In view of all the foregoing, the court is not satisfied that the motions dated 11.07.2024 and 9.09.2025 are merited. Both are dismissed with costs to the 1st Respondent. 2. **However, it is obvious that the redemption notice and notification of sale dated 24.07.2025 contain an error in so far as the title particulars in respect of the second suit property are concerned.** **Based on the material before the court and findings herein, the court will cure the defect by deeming the said notices to refer to the two suit properties herein, namely, LR. No. 9923/194** **and** **LR. No. Ngong/ Ngong/5171. The court further directs that the redemption period of 45 days stipulated in the said notices shall be reckoned from the date of this ruling. Upon expiry of the period, the Respondents shall be at liberty to proceed to take necessary steps for the realization of the two securities above if the debt claimed remains unpaid.** **DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 14TH DAY OF MAY 2026**  **C. MEOLI** **JUDGE** **In the presence of:** **For the Applicant: Ms. Waeni h/b for Mr. Michuki** **For the Respondent: Mr. Wakwaya** **C/A: Lepatei**