https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8591

Erropili Investment Ltd v I & M Bank Ltd & 3 others (Commercial Suit E003 of 2025) [2026] KEHC 8591 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8591 (KLR) Republic of Kenya In the High Court at Kajiado Commercial Suit E003 of 2025 CW Meoli, J June 18, 2026 Between Erropili Investment Limited Applicant and I & M Bank Limited 1st Respondent Zipporah Waithera Kirumba t/a Blefa East Africa Enterprises 2nd Respondent Geoffrey Kamau Maina 3rd Respondent Naomi Nyambura Njogu 4th Respondent Ruling 1.This ruling is in respect of the motion by Erropili Investment Limited ( hereafter the Applicant), dated 24.02.2025 and expressed to be brought under Article 40 of the Constitution, Sections 1A, 3A and 63 (e) of the Civil Procedure Act (CPA), Sections 91, 96(2) and 97 of the Land Act, and Order 40 Rules 1, 2 and 4, of the Civil Procedure Rules (CPR) and Rules 11 and 15 of the Auctioneers Rules. 2.The live prayers of the motion (nos. 6 & 7) essentially seek injunctive orders firstly, to restrain the 1st Respondent from transferring Land Parcel No. KJD/Kipeto/22316 to the 3rd and 4th Respondents and, second, to restrain the Respondents from taking possession of or, alienating, Land Parcel No. KJD/Kipeto/22316 pending determination of the suit. 3.The motion is premised on the grounds on its face, as amplified the supporting affidavit of even date sworn by James Kayiaa Sitelu, described therein as a director of Erropili Investment Limited, the registered proprietor of land parcel KJD/Kipeto/22316 measuring approximately 19.43 hectares (hereafter the suit property). Stating that he was duly authorized by the company's Board of Directors to swear the affidavit, the deponent in setting out the history of the dispute deposed that the Applicant had in 2022 acted as guarantor to Zipporah Waithera Kirumba T/a Blefa East Africa Enterprises (hereafter the 2nd Respondent), in respect of a revolving short-term loan facility of Kshs. 15,000,000/- which the said Respondent obtained from I & M Bank Limited (hereafter the 1st Respondent). And to secure the facility, the Applicant charged the suit property in favour of the 1st Respondent on the understanding that the 2nd Respondent would diligently service the loan. 4.The deponent further stated that prior to the creation of the charge, the valuation of the suit property by Legend Valuers Ltd yielded a market value of Kshs. 95,000,000/-, a mortgage value of Kshs. 76,000,000/-, and a forced sale value of Kshs. 71,250,000/-. He averred that the Applicant, not having received any notice, demand, or communication suggesting that the facility had fallen into arrears or that the 2nd Respondent had defaulted, had subsequently believed that the 2nd Respondent had been promptly servicing the loan as agreed. Until December 2024 when the Applicant learned from the 2nd Respondent and another guarantor that the suit property had already been sold by the 1st Respondent for only Kshs. 30,000,000/- and that the balance of the proceeds had been deposited into the 2nd Respondent's bank account. 5.According to the deponent, neither the Applicant nor its directors were served with any demand or default notice, or requisite statutory notice in accordance with the terms of the letter of offer, before the 1st Respondent exercised its statutory power of sale. Hence contended that the 1st Respondent failed to comply with the mandatory provisions of the Land Act by not serving a ninety-day statutory notice under Section 90 and forty-day notice to sell under Section 96. Thereby denying the Applicant the opportunity to redeem the property, settle the outstanding debt, or negotiate repayment arrangements. The deponent also complained that the auctioneers did not serve the Applicant with the mandatory forty-five-day redemption notice required by Rule 15 of the Auctioneers Rules, 1997. And therefore, he contends that the entire recovery process was undertaken without notice and in violation of both contractual and statutory requirements. 6.Further asserting that the suit property was grossly undervalued and sold at a throw-away price of Kshs. 30,000,000/- despite its earlier valuation at Kshs. 95,000,000/-, the deponent stated that land values within the area in which the suit property was situated were substantially higher and that comparable land was selling at approximately Kshs. 2,500,000/- per acre as of 2023. It was therefore asserted that the 1st Respondent breached its statutory duty under Section 97 of the Land Act, to obtain the best price reasonably obtainable in the circumstances, rendering the sale unlawful. 7.It was asserted further that on 17th February 2025, the Applicant discovered that the 1st Respondent had already initiated the process of transferring the suit property to Geoffrey Kamau Maina and Naomi Nyambura Njogu (hereafter the 3rd and 4th Respondents) by applying for consent from the Kisamis Land Control Board. Hence, unless the orders sought were granted, the suit property would be transferred to third parties, an eventuality that would complicate recovery and defeat any eventual judgment of the Court. 8.The deponent described the sale and intended transfer of the suit property as characterized by fraud, collusion, and procedural irregularities involving the 1st and 2nd Respondents. He averred that the Applicant, having merely acted as guarantor, stood the risk of losing its prime asset without notice, whereas one of its directors had established her matrimonial home on the suit land, and equally stands to suffer substantial hardship if the transfer proceeds. 9.Finally, the Applicant swore that unless the Court intervened, the suit may be rendered nugatory as the suit property could be transferred to innocent purchasers. Exposing the Applicant to irreparable loss and damage. 10.In opposition to the motion, the 1st Respondent filed a replying affidavit sworn on 19th May, 2025 by Flavia Wambui, a Credit Officer in the Remedial and Debt Recovery Department of the said Respondent bank. To the effect that the Bank lawfully advanced a revolving short-term loan facility of Kshs. 15,000,000 to the 2nd Respondent pursuant to a Letter of Offer dated 25th July 2022; that the facility was intended to finance the importation of merchandise from China and Pakistan; that as security for the facility, the Applicant charged the suit property, in favour of the Bank, and both the Applicant and one John Chege Njuguna executed guarantees and indemnities securing repayment of the loan. The deponent averred that all relevant security documents, including the charge and guarantees, were duly executed and registered. 11.Contending that the 2nd Respondent defaulted in servicing the loan facility thereby entitling the 1st Respondent to exercise its statutory remedies, she asserted that the 1st Respondent bank issued the requisite statutory notices, including the ninety-day notice pursuant to Section 90 of the Land Act, and dated 14th June 2023 and the forty-day notice under Section 96 of the Land Act, dated 4th October 2023 before eventually instructing auctioneers who issued and served a forty-five-day notification of sale. Thus, according to the deponent, all the notices were served through registered post and personal service, and certificates of postage and service have been exhibited to demonstrate compliance with the law. 12.The 1st Respondent further explained that before accepting the property as security in 2022, it had instructed Legend Valuers Limited to conduct a valuation which returned an open market value of Kshs. 95,000,000/-, a mortgage value of Kshs. 76,000,000 and a forced sale value of Kshs. 71,250,000/-. However, before the exercise of the statutory power of sale in February 2024, the said Respondent had commissioned a fresh valuation by Chrisca Real Estates. 13.The subsequent valuation placed the open market and forced sale values of the suit property at Kshs. 40,000,000/- and Kshs. 30,000,000/-, respectively. The decline in value being attributed to various economic factors including the effects of the COVID-19 pandemic, political uncertainty surrounding the 2022 elections, fiscal reforms, reduced purchasing power, and the undeveloped nature of the property. 14.The deponent proceeded to assert that the earlier valuation by Legend Valuers Limited was exaggerated and failed to take into account prevailing market realities. And contending that the substantial difference between the two valuations demonstrates professional negligence on the part of the Legend Valuers Limited rather than wrongdoing on the part of the lender. Hence, denying having sold the property at an undervalue the deponent insisted that the sale price reflected the prevailing forced sale value established by the independent valuation conducted immediately before the auction. 15.The deponent averred further that the property was advertised in the Daily Nation newspaper and sold through a public auction held on 23rd February 2024. Where, three bidders allegedly participated, namely Geoffrey Kamau Maina, James Mwatai and Agengo Group Limited. Geoffrey Kamau Maina emerging as the highest bidder with an offer of Kshs. 30,500,000/- had allegedly paid the requisite deposit and that a memorandum of sale was duly executed. 16.Stating that the proceeds of sale were applied towards settlement of the outstanding loan, auctioneer’s fees and valuation expenses, leaving a surplus of Kshs. 11,587,575.15, the deponent said that the surplus was deposited into the 2nd Respondent’s account. And not into the Applicant’s account because no bank-customer relationship existed between the Applicant and the 1st Respondent bank. Thus, according to the deponent, any complaint regarding the alleged misappropriation of the surplus by the 2nd Respondent should be directed against her and not the 1st Respondent, against whom the bank also intended to pursue a counterclaim for any loss arising from the alleged fraudulent use of the surplus funds. 17.In the deponent’s view, the Applicant’s equity of redemption was extinguished upon the fall of the hammer at the auction and an award of damages, the only remedy available to them, if any wrongdoing is ultimately proved against the 1st Respondent. And contending that that the Applicant had not demonstrated a prima facie case, irreparable harm, or any basis for the grant of injunctive relief, the deponent dismisses the motion as frivolous, misconceived and intended to delay completion of the transfer process. In addition to the caveat lodged by the Applicant to that end. Consequently, the 1st Respondent urged the Court to dismiss the application with costs. 18.By her replying affidavit, the 2nd Respondent describing herself as the proprietor of Blefa East Africa Enterprises supported the Applicant’s motion. And while agreeing with the contents of the affidavit sworn by James Kayiaa Sitelu on 24th February 2025, she denied the allegations of fraud or collusion with the 1st Respondent as set out in grounds (v) and (z) of the motion and paragraph 25 of the supporting affidavit. Asserting that at no time did she conspire or act in concert with the 1st Respondent to deprive the Applicant of its property. 19.In response, the Applicant filed a further affidavit sworn by James Kayiaa Sitelu on 25th September, 2025. Therein, he disputed assertions that the Applicant was served with the statutory notices required under the Land Act before the sale of the suit property. Pointing out that under clause 7(b) of the Letter of Offer, which governed the relationship between the Applicant and the 1st Respondent, all notices and demands, including statutory notices and auctioneers’ notifications, were required to be served electronically through the Applicant’s designated email address, erropili2030@gmail.com. Adding that the 1st Respondent failed to issue any notices through the said agreed mode of communication and thereby breached the terms of the contract. 20.Taking issue with copies of statutory notices exhibited in the 1st Respondent’s replying affidavit, he asserted that these do not bear the Applicant’s email address, whereas no evidence of email transmission or delivery was tendered. Hence, the 1st Respondent failed to demonstrate compliance with the contractual requirement for service. Similarly, he reiterated that the Applicant was never served with the mandatory forty-five-day Auctioneer’s notification of sale as required under the Auctioneers Act. According to the deponent, the notices exhibited by the Bank were addressed to the 2nd Respondent alone, despite the Applicant being the registered proprietor of the suit property. Thus, he contends that the Applicant was denied an opportunity to exercise its statutory right of redemption before the auction took place. 21.Challenging the 1st Respondent’s attempt to discredit the valuation report prepared by Legend Valuers Limited, the deponent emphasized that the Bank relied on the same valuation report when it accepted the suit property as security for the loan, and could not disown it at this stage merely because it no longer supports its position. More so, as there was no demonstration that it lodged any complaint against Legend Valuers Limited with relevant regulatory bodies or initiated any proceedings against the said valuers. Consequently, according to the deponent, the allegation that the earlier valuation was negligent or exaggerated was unsupported by evidence. 22.Dismissing the Bank’s explanation that the property value declined drastically due to factors such as the COVID-19 pandemic, political instability, fiscal reforms and the state of the property, the deponent pointed out that the first valuation that was the basis of the facility was conducted in May 2022, after the COVID-19 pandemic had largely subsided and only a few months before the 2022 General Election. Making nonsense of the attribution of reduction in value at the time of the auction from Kshs. 95,000,000/- to Kshs. 40,000,000/- to factors that already existed when the earlier valuation was conducted, and while the property remained in substantially the same condition. The 1st Respondent not having demonstrated any physical changes justifying a sharp decline in value within a short period. 23.The deponent further contended that the 1st Respondent only sought explanations from the second valuer regarding the decline in value of the suit property in April 2025 when the present suit had already been filed. This, according to the deponent, suggests that the Bank was attempting to justify its actions retrospectively rather than genuinely investigating the valuation discrepancy. He therefore asserted that the Bank’s own evidence demonstrates a breach of Section 97 of the Land Act, which imposes a duty on a chargee exercising its statutory power of sale to obtain the best price reasonably obtainable in the market. 24.On the question of the disbursement of surplus proceeds of the sale, the deponent rejects the Bank’s explanation that the balance was deposited into the 2nd Respondent’s account because the Plaintiff did not hold an account with the Bank. Arguing that the suit property belonged to the Applicant, which never authorized the 2nd Respondent or any other person to receive monies on its behalf. And had the Bank genuinely intended to remit the surplus to the Applicant, it could easily have requested details of the Applicant’s bank account through the email address specified in the Letter of Offer, and besides, the admission that it lacked the Applicant’s account details demonstrates that it had not been in communication with the Applicant throughout the recovery process. 25.Finally, the deponent cites the Bank’s conduct in depositing the surplus proceeds into the 2nd Respondent’s account, and the failure to notify the Plaintiff of the sale, as lending credence to the Applicant’s allegation of collusion between the 1st and 2nd Respondents. He dismisses the bank’s threat to raise a counterclaim against the 2nd Respondent as an afterthought intended to justify the improper handling of the sale proceeds. The deponent in summation reiterated the Applicant’s prayer for injunctive relief to prevent the transfer of the suit property, pending the hearing and determination of the suit. Submissions 26.The motion was canvassed via written submissions. The Applicant’s submissions are dated 29th September, 2025. Counsel for the Applicant, submitted that it has established a prima facie case, demonstrated the likelihood of suffering irreparable harm, and shown that the balance of convenience favours preservation of the suit property pending determination of the suit. Recounting the background to the motion culminating in the realisation in December 2024 that the property had been sold by the 1st Defendant for Kshs. 30,000,000/- and absence of prior service of statutory notices, the Applicant argued that the 1st Respondent failed to comply with the mandatory requirements under Section 90 and 96 of the Land Act as well as Rule 15 of the Auctioneers Rules, all which govern the exercise of a chargee’s power of sale. 27.Poking holes in the replying affidavit filed by the 1st Respondent bank, counsel stated that the exhibited notices purporting service of statutory notices did not contain the Applicant’s email address, despite clause 7(b) of the Letter of Offer requiring all notices and demands to be served electronically through the email address erropili2030@gmail.com. Counsel further asserted that the Bank failed to produce any email delivery records to prove service through the agreed contractual mode. 28.As concerns the legal principles governing interlocutory injunctions, counsel for the Applicant relied on Giella v Cassman Brown & Co. Ltd [1973] EA 358, where the East African Court of Appeal held that an applicant must establish a prima facie case with a probability of success, show that damages would not be an adequate remedy, and where doubt exists, the matter should be determined on a balance of convenience. As well as the definition of a prima facie case found in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, namely,” A case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 29.Asserting that the statutory notices required by Sections 90 and 96 of the Land Act and Rule 15 of the Auctioneers Rules are mandatory, counsel stated that the Bank’s failure to prove due compliance was demonstrative of the fact that the Applicant was deprived of its statutory right of redemption. Whereas the Bank’s own documents revealed that notices were allegedly sent by post despite the contractual requirement that service be effected through email. Thus, a clear violation of its rights and therefore prima facie case with a high probability of success had been established. 30.In that regard, reliance was placed on the decision in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others [2017] eKLR, where the Court of Appeal questioned the reliability of certificates of postage that failed to disclose dates of postage and emphasized that disputes regarding service of statutory notices may only be conclusively resolved at trial. Counsel arguing that similar uncertainties exist here, the Bank having failed to produce satisfactory proof of statutory notices via the agreed email address. 31.Concerning demonstration of irreparable harm, the Applicant submitted that unless an injunction was granted, it stood to lose its proprietary interest in the suit property. Here citing Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, for the proposition that irreparable injury is injury that cannot adequately be compensated by an award of damages and for which no other remedy is available. The Applicant contending that the threatened loss of land, particularly where proprietary and residential interests are involved, constitutes irreparable harm. 32.At the same time underscoring the rationale for granting temporary injunctions to be the preservation of the subject matter of the suit and prevent it from being prematurely rendered nugatory, based on the risk of alienation through transfer to the 3rd and 4th Defendants and possible subdivision of the suit property, which also hosts a matrimonial home. Counsel citing in support Madhupaper International Ltd v Kerr [1985] eKLR; Margaret Jepchumba Kigen v Peter Nyuguna Mwaura & 9 Others [2025] KEELC 5180 (KLR); Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & Another [2019] eKLR and Joel Kipkuru Arap Koech v Alice Wambui Magandu & 3 Others [2018] eKLR. 33.Counsel further argued concerning the balance of convenience that the scales tilt in the Applicant’s favour because preservation of the property will merely maintain the status quo. And cited the statement in Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR, that where the court where doubt exists, an injunction should be issued if refusal would cause greater hardship than its grant. Similarly, the emphasis by Ojwang J (as he then was) in Amir Suleiman v Amboseli Resort Limited [2004] eKLR, that courts should adopt the course carrying the lower risk of injustice and preserve the status quo pending determination of the dispute. In addition, relying on Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772, cited in Amir Suleiman, for the proposition that where uncertainty exists, the court should choose the option carrying the lower risk of injustice. Thus, in counsel’s view, preserving the property pending trial is the course least likely to cause injustice. 34.Through their counsel, the 1st Respondent filed submissions dated 17th July, 2025. The 1st Respondent submitted that the Applicant has failed to satisfy the conditions for the grant of an interlocutory injunction spelt out in Giella v Cassman Brown & Co. Ltd [1973] EA 358. Namely, a prima facie case, irreparable injury, and that the balance of convenience favours the Applicant. Reiterating that the 2nd Respondent admittedly defaulted in making payments under the loan facility, and that requisite statutory notices were duly issued, counsel asserted that the charged property was lawfully sold by public auction on 23rd February 2024 to the 3rd Respondents. Consequently, the Applicant’s equity of redemption was extinguished at the fall of the hammer and that the present motion was devoid of merit. 35.Counsel asserted that the 1st Respondent fully complied with the provisions of Sections 90 and 96 of the Land Act by issuing the requisite ninety-day and forty-day statutory notices and thereafter instructed auctioneers who issued the mandatory forty-five-day notification of sale. Citing Standard Chartered Bank of Kenya Ltd & Another v Kaburu & Another [2022] KEHC 13546 (KLR), where the Court held that a chargee may exercise its statutory power of sale after serving the requisite notices and upon failure by the chargor to rectify the default. The 1st Respondent Bank was therefore entitled to exercise the statutory power of sale as the 2nd Respondent had, despite being served with statutory notices, failed to regularize the loan account. 36.Counsel further, placed reliance on Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, where the Court of Appeal emphasized that a mortgagee will not ordinarily be restrained from exercising its power of sale merely because the amount claimed is disputed or because the mortgagor objects to the manner of realization of the security. In counsel’s view, once the auction was concluded and the property knocked down to the successful bidder for Kshs. 30,500,000/-, the Applicant’s proprietary rights were extinguished and the only available remedy, if any wrongdoing is eventually proved, lies in damages. 37.In support of the proposition that the equity of redemption is extinguished upon sale by auction and that a valid contract of sale immediately binds the parties, counsel relied on David Limo Bundotich v Housing Finance Company of Kenya Ltd [2022] eKLR and Simon Njoroge Mburu v Consolidated Bank of Kenya Ltd [2014] eKLR. Thus, in the present case, the interest in the suit property passed to the purchaser at the conclusion of a valid auction, notwithstanding that certain conveyancing formalities remained uncompleted. In such circumstances, the court cannot issue injunctive orders to stop transfer to the purchaser or to otherwise interfere with the rights of a purchaser who acquired the property at a valid public auction, as held in Otieno v Stanbic Bank Kenya Ltd [2024] KEHC 1218 (KLR). 38.Accusing the Applicant of approaching the court with unclean hands, counsel asserted that having voluntarily offered its property as security and failed to ensure repayment of the secured debt, the Applicant could not invoke the equitable jurisdiction of the court to avoid the consequences of the default. Counsel invoked the statement in Caliph Properties Limited v Barbel Sharma & Another [2015] eKLR, where the Court held that a party seeking equitable relief must itself do equity and cannot benefit from its own default. 39.Regarding demonstration of irreparable harm, counsel contended that the Applicant will not suffer loss incapable of compensation because the property was expressly offered as security with the understanding that it could be sold in the event of default. As held in Kitur & Another v Standard Chartered Bank & 2 Others [2002] eKLR. Besides, any injury suffered by the Applicant could adequately be compensated through an award of damages. 40.In rejecting the Applicant’s allegation that the property was sold at an undervalue, the 1st Respondent reiterated that before the auction a fresh valuation was conducted by Chrisca Real Estate which assessed the property at an open market value of Kshs. 40,000,000/- and a forced sale value of Kshs. 30,000,000/-. And that differences between professional valuations is not sufficient reason to restrain a chargee from exercising its statutory power of sale. In this regard, counsel relied on the holding in Maina & Another v Equity Bank Limited & 2 Others [2023] KCHC 23538 (KLR), that a valuation report prepared by a qualified valuer should not be disregarded merely because another valuation gives a different figure, and that a dispute over valuation alone cannot justify restraining the chargee’s exercise of its statutory power of sale. 41.On the application of surplus proceeds of sale, the 1st Respondent reiterated the explanation in its affidavit in reply to contend that any complaint concerning the utilization of those funds is a matter between the Applicant and the 2nd Respondent and does not affect the validity of the sale. Citing in that regard David Isor Ayubu v I&M Bank Limited & Another [2020] eKLR, where the Court declined to invalidate a sale merely because disputes arose regarding the application of sale proceeds after realization of the security. 42.Finally, regarding the balance of convenience, the Bank contended that greater prejudice would be occasioned if an injunction were granted because the property has already been sold and the purchaser’s rights have crystallized. And that preventing transfer would expose it to litigation by the purchasers in addition to depriving the 1st Respondent of the fruits of its statutory remedies. Here citing Thathy v Middle East Bank (K) Limited & Another [2002] eKLR, where it was held that where a borrower remains in default and the security has already been realized, the balance of convenience generally favours the lender rather than the defaulting borrower. 43.In summation, the 1st Respondent submitted that the Applicant failed to demonstrate a basis for the grant of injunctive relief. The Court was therefore urged to dismiss the motion with costs. Analysis and Determination 44.The court has considered the rival affidavit material and submissions canvassed in respect of the motion. The live prayers in the motion essentially seek injunctive orders firstly, to restrain the 1st Respondent from transferring suit property to the 3rd and 4th Respondents and, second, to restrain the Respondents from taking possession of, or alienating the suit property pending the hearing and determination of the suit. 45.Order 40 Rule 1 of the Civil Procedure Rules provides for temporary injunctions in the following terms: -“Where in any suit it is proved by affidavit or otherwise— (a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or(b)that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders’’. 46.The now settled principles governing the grant of interlocutory injunctions as spelt out in Giella v Cassman Brown & Co. Limited [1973] EA 358 [supra] were reiterated in Nguruman Limited (supra). The latter decision is particularly illuminating. Therein, the Court of Appeal described the role of the court in such an application to be merely to consider whether the principles for the grant of the interlocutory injunction were met. 47.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 levelb)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.” 48.The Court explained 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. 49.Thus, the first issue for determination is whether the Applicant in this case has established a prima facie case. As I understood it, the Applicant’s complaint is not merely that the suit property was sold by the 1st Respondent at an auction to the 3rd and 4th Respondents. The Applicant’s core grievance is that prior to that auction, it was neither served with the statutory notices prescribed under Sections 90 and 96 of the Land Act, nor the redemption notice and notification of sale under Rule 15 of the Auctioneers Rules. And that whereas under clause 7(b) of the Letter of Offer, such notices were required to be transmitted through its designated email address, no such communication was ever sent. As for the notices exhibited in the 1st Respondent's affidavit, the Applicant pointed out that these were addressed to the 2nd Respondent, the borrower and not to the Applicant as guarantor/chargor. 50.On its part, the 1st Respondent has asserted that in compliance with statutory prerequisites to exercising its statutory power of sale, it issued and duly served all statutory notices through registered post and personal service. And, in that regard exhibiting asserted certificates of postage and service. 51.At this interlocutory stage, the Court is not called upon to make definitive findings on contested facts, but merely to consider whether the principles for the grant of the interlocutory injunction have been met. However, where service of statutory notices is disputed, the court must examine whether the material before it discloses an arguable question deserving trial. The Court of Appeal in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others [2017] eKLR observed as follows regarding disputed service of the statutory notice under section 90 of the Land Act:‘’48.In this case, the appellant also annexed some two certificates of posting to evince its contention that the notices were duly served… a cursory inspection of the said certificates however does not reveal the dates when the posting was done. Therefore, prima facie the court cannot rely on the assertion that the notices were dispatched in time as alleged. In the face of Kang’ethe’s denial of service, this becomes an issue for determination at trial. In Mrao Ltd v. First American Bank of Kenya Ltd & 2 other (2003) eKLR, a prima facie case was defined as “a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter. 52.The Court of Appeal concluded by stating that :-49.In this case, the material before court lends credence to the possibility or likelihood that the procedure might have been flouted. This is because, the statutory notice under Section 90 of the Land Act becomes operational upon service of the same upon the mortagagor and as long as doubt on that aspect persists, then the matter calls for interrogation of the evidence and the same can only be done at trial. In the interim, the same attracts the issuance of injunctive orders and the judge cannot be faulted for holding as much. 53.Section 90(1) of the Land Act provides that where a chargor is in default by failing to make due payments, which continues for a period of a month the chargee “may serve on the chargor a notice , in writing to pay the money owing’’. Hence, the chargee’s statutory power of sale crystallizes upon the chargor failing to comply by rectifying his default within the 90 days of the notice under section 90 of the Land Act. 54.As held in Standard Chartered Bank of Kenya Limited & Anor.vs Kaburu & Anor. (2022) eKLR:-“ 15.In order to exercise its statutory power of sale, the chargee must issue and serve the chargor notices under the Land Act 2012……if the chargor does not comply with the demand within 90 days after service of the notice, the chargee may proceed to sell the charged property. It is at this point that it is said the statutory power of sale has crystallised. Upon crystallization of the power of sale, the chargee is required to issue and serve on the chargor a 40-day notice to sell the subject property under Section 96 of the Land Act. If the chargor does not comply, the chargee may then instruct an auctioneer who will serve a 45-day redemption notice under the provisions of the Auctioneers Rules. 16.Service of the statutory notices by the chargee on the chargor is mandatory for it is only upon service, that a chargor is notified of default of obligations under the charge and given the opportunity to exercise its right of redemption. The duty to serve the notices and the burden of proof when the issue of service is in dispute is squarely on the chargee”. 55.It was the 1st Respondent’s assertion that a notice under Section 90 of the Land Act was served via registered mail, as evidenced by annexures exhibited at pages 56 to 58 of the replying affidavit, being copies of the notice and asserted evidence of postage by registered mail. Equally, the 1st Respondent in deflecting the Applicant’s allegations of non-service of notice pursuant to Section 96 (2) of the Land Act asserted that upon the expiry of 90 days, a notice under the latter section was also served, here relying on annexures at pages 59 to 61 of their replying affidavit. Ditto for service of the Auctioneer’s redemption notice and notification of sale under Rule 15 of the Auctioneers Rules (see the 1st Respondent’s annexures exhibited at pages 62-69 of the replying affidavit), the Applicant having failed to remedy its default. The Applicant has disputed the service of these notices including the Auctioneer’s redemption notice, allegedly physically served upon them. 56.There was no dispute that the Letter of Offer provided for electronic service of notices between the parties. Whether service by registered post satisfied the terms of the contract between the parties requires interrogation of evidence at a trial, and cannot be resolved at this stage. Equally, having considered the 1st Respondent’s annexures bespeaking service of notices via registered mail pursuant to Section 90 and 96 of the Land Act, the court noted that the supposed proofs of postage while embossed with a stamp at the post office, appear to be schedules or listings of mails rather than certificates of postage as such. As for the sole certificate of postage exhibited in respect of the notice under the Auctioneers Rules, it was evidently addressed to the 2nd Respondent only. 57.In Nyangilo Ochieng & Another v Fanuel Ochieng & 2 Others [1995-1998] 2 EA 260, the Court of Appeal held that the chargee bears the burden of showing that the statutory notice has been served on the chargor upon the chargor disputing receipt of the statutory notice. The Court is satisfied that the Applicant has raised serious and arguable questions regarding the 1st Respondent’s compliance with Sections 90 and 96 of the Land Act and Rule 15 of the Auctioneers Rules. The issue is not frivolous as it could well have implications inter alia on the question whether the charge’s power of sale had indeed crystallized in this case. 58.A second related issue concerns the effect of the public auction conducted on 23rd February 2024. The position taken by the 1st Respondent Bank was that the Applicant's equity of redemption was extinguished upon the fall of the hammer at the auction. The authorities cited including David Limo Bundotich v Housing Finance Company of Kenya Ltd [supra]; Simon Njoroge Mburu v Consolidated Bank of Kenya Ltd [supra] and; Otieno v Stanbic Bank Kenya Ltd [supra] indeed affirm the principle that a chargor's equity of redemption is ordinarily extinguished upon a valid public auction being concluded. 59.In the present case, the Applicant challenges the validity of the process leading to the sale of the suit property by public auction. Where firm allegations are made by a chargor that mandatory statutory notices were not served or that there was a breach of the chargee's duty under Section 97 of the Land Act, the court may intervene to preserve the subject matter pending trial. The public auction in this instance was assertedly conducted in February 2024. However, the transfer process had not been completed by the time the application was filed because the consent of the relevant Land Control Board was still pending. The legal title therefore remained capable of preservation. 60.The Applicant also challenged the valuation of the suit property relied on by the 1st Respondent for purposes of the public auction. The affidavit evidence by the 1st Respondent and submissions addressed that matter in some detail. Therein, the 1st Respondent effectively admitted and attempted an explanation for the substantial disparity between the suit property valuation of Kshs. 95,000,000/- (in 2022 at the time of the loan transaction) and the valuation of Kshs. 40,000,000/- (in 2024 before the public auction), with the property eventually fetching Kshs. 30,500,000/- at the auction. Moreover, regarding the application of sums realised at the auction, the 1st Respondent admitted to have, upon satisfaction of the outstanding loan balance, credited the surplus of Kes. 11,000,000/- odd to the account of the defaulter, the 2nd Respondent, because the Applicant’s account details were unknown. The Applicant denied receiving any of these surplus sums. 61.That said, the disparity in values arrived at by different valuers without more, may not necessarily be proof that the 1st Respondent was in breach of Section 97 of the Land Act. However, in this instance the degree of the disparity between two valuations conducted within a relatively brief time window appears to raise a legitimate question as to whether the Bank indeed discharged its duty to obtain the best price reasonably obtainable at the sale. It is evident that while in both instances the valuers had been commissioned by the 1st Respondent, the said Respondent by its affidavit and submissions appeared at pains to discredit the first valuation. The emerging issue, while significant in the court’s opinion, can only be conclusively resolved upon full evidence at the trial. 62.Based on the foregoing, the court is satisfied that the Applicant has established a prima facie case with a probability of success. 63.Concerning irreparable harm, the Court is persuaded that the suit property constitutes a substantial asset that was owned by and remains in the Applicant’s name. If the proposed transfer to third parties is completed before the dispute is heard, restoration of the property should the Applicant eventually succeed, may be nigh impossible, particularly as rights of innocent purchasers may arise. 64.The 1st Respondent has strongly argued that damages would be an adequate remedy in that event. However, the Court is not persuaded that monetary compensation of itself would sufficiently redress the Applicant’s loss of proprietary rights over land through a public auction, whose legality or validity was contested. So that, if the Applicant were to prove its pleaded case at the trial by demonstrating that the recovery process was tainted, an award of damages might probably appear a pyrrhic victory. 65.Thus, it is not altogether obvious here that an eventual award of damages would provide succor to the Applicant. In the court’s view therefore, the balance of convenience appears to tilt in favour of preserving the suit property pending determination of the suit. The transfer process has not been completed and maintaining the status quo will not reverse the auction or determine the rights of the parties with finality. On the other hand, permitting completion of the transfer might well defeat the principal objects of the suit, should the Applicant ultimately succeed. In the circumstances of this case, preservation of the property presents the lower risk. 66.In the result, the court is persuaded to grant the motion dated 24th February, 2025 in terms of prayers 6 and 7 therein. To obviate unnecessary delay in the conclusion of this case, the court directs that these orders, unless otherwise extended by the court, shall remain in force for a period of one year reckoned from today’s date, and during which the Applicant ought to take all necessary steps to prosecute its case to conclusion. The costs of the motion are awarded to the Applicant in any event. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 18TH DAY OF JUNE 2026C. MEOLIJUDGEIn the presence of:For the Applicant: Mr. AbaleFor the 1st Respondent: Mr. WawireFor the 2nd Respondent: Ms. TuweiFor the 3rd and 4th Respondents: N/AC/A: Lepatei