https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9039

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCOMM NO. E245 OF 2025** GOLDROCK INTERNATIONAL ENTERPRISES (K) LTD..…….....PLAINTIFF -VERSUS- KENYA COMMERCIAL BANK LTD………………………….….DEFENDANT **RULING** 1. This Ruling is with respect to three applications. The first application is the plaintiff’s Notice of Motion dated 21st May 2025 filed pursuant to the provisions of Order 50 Rule 6 & Order 40 Rules 1, 2 & 4 of the Civil Procedure Rules, 2010, Sections 1A, 1B & 3A of the Civil Procedure Act, Section 104 (2) of the Land Act, 2012, and all other enabling provisions of the law. The plaintiff prays for an order that this Honourable Court be pleased to vary, postpone, or extend the period within which it was required to comply with the Statutory Notice, pending the determination of this suit. 2. The application is premised on the grounds on the face of the Motion and it is supported by an incomplete affidavit sworn by Samuel S. Y. Park, a Director of the plaintiff’s company. Mr. Park averred that on 8th May 2025, this Court directed the plaintiff to file its responses within seven (7) days, and although the responses are now ready, leave of the Court is required for extension of time. He contended that in an effort to salvage the plaintiff’s property, on 12th May 2025, the plaintiff entered into an Agreement for the sale of Plot Number 25 at a purchase price of Kshs.22 Million, and upon receipt of the deposit, it paid the defendant the sum of USD 17,000.00 and visited its offices with a view to making proposals for further payment. 3. He further averred that the plaintiff has also obtained a copy of the Valuation Report dated March 2025 prepared by the defendant’s Valuers, which indicates that the forced sale value of the suit property is Kshs.15 Million, thereby demonstrating that the purchaser secured by the plaintiff offers a significantly higher value. 4. The 2nd application is the plaintiff’s Notice of Motion dated 4th June 2025 filed pursuant to the provisions of Order 40 Rules 1, 2 & 4 of the Civil Procedure Rules, Sections 1A, 1B & 3A of the Civil Procedure Act and all other enabling provisions of law. The plaintiff seeks orders that pending the *inter partes* hearing of the application, it be granted a temporary injunction restraining the defendants, their servants, agents, assigns, and any other persons acting on their behalf from selling, offering for sale, or in any way dealing with the charged properties known as L.R. Nos. 18995/22, 18995/23, 18995/24, and 18995/25 situated in Baba Dogo, Nairobi, and in the alternative, an order be issued that the status quo prevailing at the time of filing the application herein, be maintained. 5. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Samuel S. Y. Park, a Director of the plaintiff company. Mr. Park averred that since the filing of this suit, the plaintiff has made payments amounting to USD 34,000.00 and proposes to make a further payment of USD 17,000.00 within seven (7) days from the date of the affidavit. He further averred that the plaintiff has made proposals to sell off other portions of land, the proceeds of which will go towards offsetting the undisputed sums, while the balance of the purchase price to be realized from the sale referred to in the plaintiff’s application dated 21st May 2025, will be applied towards further reduction of the debt. He contended that the plaintiff is apprehensive that the defendant may issue another advertisement for the sale of the charged properties, which would discourage prospective buyers. 6. The 3rd application is the defendant’s Notice of Motion dated 1st July 2025 filed under the provisions of Order 40 Rule 7 of the Civil Procedure Rules and the inherent powers of the Court. The defendant seeks an order to set aside and/or for discharge of this Court’s orders issued on 5th June 2025. 7. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on 30th June 2025 by Ms Lilian Sogo, the defendant’s Head Counsel, Litigation. Ms Sogo averred that the plaintiff instituted this suit on 31st March 2025, with an application for injunction dated the same day, upon which the Court on 7th April 2025 directed the defendant to file its response within fourteen (14) days, the plaintiff to file a further affidavit and written submissions within fourteen (14) days of service, and the defendant to thereafter file its submissions within fourteen (14) days. She stated that on 16th April 2025, the law firm of George Siro Advocates came on record for the plaintiff in place of the law firm of R.H. Wanga & Company Advocates and on the same date, they filed a Notice of Withdrawal of the earlier application together with a fresh injunction application seeking to stop the auction of parcels of land known as L.R. Nos. 18995/22, 18995/23, 18995/24, and 18995/25. 8. Ms Sogo deposed that Lady Justice Njoki Mwangi considered the application *ex parte* and directed that since it had been filed during the Court vacation without compliance with the vacation rules, it be listed for directions before Judge Benjamin Njoroge on 28th April 2025. However, when the matter came up on that date, the Court file could not be traced, and despite the plaintiff’s request for interim orders due to a scheduled auction on 13th May 2025, the Court declined to grant the said relief in the absence of the physical Court file. She stated that in response to the plaintiff’s application, the defendant filed grounds of opposition and a replying affidavit dated 25th April 2025. She averred that thereafter, the plaintiff filed another application under certificate of urgency dated 29th April 2025 seeking restraining orders in similar terms. She stated that on 8th May 2025, when the matter came up before Judge Benjamin Njoroge, the plaintiff admitted its indebtedness to the defendant and acknowledged that the defendant had complied with all procedural requirements preceding the sale. 9. She further stated that consequently, the Court held that no case had been made out for the grant of a temporary injunction to stop the auction, directed the plaintiff to file a further affidavit, and fixed the matter for mention on 2nd July 2025. Ms Sogo asserted that subsequently on 21st May 2025, the plaintiff filed yet another application under certificate of urgency. That although no interim relief was granted *ex parte*, the Court ordered service of the application and fixed it for *inter partes* hearing on 5th June 2025. She deposed that on 23rd May 2025, the plaintiff only served the defendant with the orders and a word document indicated to be a certificate of urgency, without serving the actual application or a complete supporting affidavit. She claimed that the defendant’s Advocates confirmed through the Judiciary’s Case Tracking System that the plaintiff had not filed a complete supporting affidavit and requested service of the same, which was never done. 10. Ms Sogo averred that on 5th June 2025, the matter did not proceed as the Judge had no cause list, and that on 4th June 2025, the plaintiff filed a fourth application under certificate of urgency seeking a temporary injunction, and Lady Justice Freda Mugambi granted interim injunctive orders on condition that the plaintiff pays the defendant USD 17,000.00 within seven (7) days from 5th June 2025, which payment was later made through three cheques dated 9th June 2025 and deposited on 10th June 2025. Ms Sogo contended that the plaintiff is abusing the Court process and that the Order issued on 5th June 2025 ought to be set aside because the plaintiff failed to disclose the existence of the pending applications dated 16th April, 29th April and 21st May 2025, when seeking *ex parte* relief, amounting to material non-disclosure and a failure to approach the Court with full and frank disclosure and utmost good faith. 11. In opposition to the defendant’s application, the plaintiff filed Grounds of Opposition dated 15th November 2025, raising the following issues:- 12. That all material disclosure has been made and the record speaks for itself; 13. That the plaintiff has all along acted in good faith and has met the requirements set by Justice Freda Mugambi in the Order dated 5th June 2025 and the plaintiff has not defaulted in the payment of any instalment up to and including November 2025; 14. That the defendant's recourse, if any, lies in appeal; 15. That the plaintiff has acted in utmost good faith; 16. That the remedy sought does not lie; and 17. The Orders herein were granted by a Court of competent jurisdiction and the defendant’s application is tantamount to challenging the Jurisdiction of this Hon. Court. 18. The applications herein were canvassed by way of written submissions. The record shows that although the plaintiff was granted an opportunity to file its written submissions in support of its applications and in opposition to the defendant’s application, it did not comply with the Court's directions. It is however noteworthy that the defendant’s submissions were filed by the law firm of Hamilton Harrison & Mathews Advocates on 14th November 2025. 19. Mr. Lawson Ondieki, learned Counsel for the defendant cited the Court of Appeal case of **Nguruman Limited v Nielsen & 2 others** [2014] KECA 606 (KLR) and asserted that the plaintiff has not made out a case to warrant being granted the interlocutory reliefs sought herein. He referred to the Court of Appeal cases of **Mrao Ltd v First American Bank of Kenya Ltd & 2 others** [2003] KECA 175 (KLR) and **Zum Zum Investment Limited v Habib Bank Limited** [2014] KEHC 6207 (KLR), and submitted that the plaintiff has failed to establish such a case because its applications merely challenge the valuation of the charged properties and allege under valuation, yet disputes on valuation alone do not justify an injunction. Counsel stated that the defendant produced a Valuation Report dated 6th March 2025 prepared by Milligan Valuers Limited, and further stated that on 8th May 2025, the plaintiff admitted indebtedness and acknowledged that all statutory requirements preceding the sale had been complied with. 20. Mr. Ondieki contended that since no contrary Valuation Report was produced by the plaintiff, there is no dispute that the plaintiff is indebted to the defendant and that the defendant properly served the requisite Statutory Notices, entitling it to exercise its statutory power of sale over the suit properties. He claimed that restraining the sale of the suit properties would unjustly relieve the plaintiff of its obligation to repay an accrued debt. 21. On irreparable loss, Counsel cited the case of **John Kingori Kioni v Sidian Bank & another** [2020] KEHC 5460 (KLR) and argued that no such loss will be suffered because the charged properties were voluntarily offered as security and therefore became commodities for sale capable of monetary compensation. 22. Counsel also invoked the provisions of Section 99(4) of the Land Act, 2012, and submitted that any alleged loss arising from sale of the charged properties is compensable by damages. Mr. Ondieki asserted that since the defendant is a Tier 1 bank in Kenya and there is no suggestion that it cannot satisfy any future award of damages, the plaintiff has failed to establish irreparable harm. 23. Mr. Ondieki submitted that the balance of convenience tilts in favour of the defendant because the outstanding debt as at 24th February 2025 stood at USD 1,471,806.10 and continues to accrue interest. He argued that continued delay prejudices the defendant’s ability to recover the monies advanced and exposes it to substantial financial loss, hence the balance of convenience supports allowing the defendant to proceed with the statutory sale. 24. With regard to the defendant’s application seeking to set aside the *ex parte* Order issued on 5th June 2025, Mr. Ondieki relied on the Court of Appeal case of **Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others** [2009] KECA 453 (KLR) and contended that the plaintiff is guilty of abuse of the Court process by filing multiple injunction applications, while failing to disclose the existence of pending earlier applications and the orders made therein. 25. Mr. Ondieki further contended that the plaintiff’s failure to disclose the pending applications dated 16th April, 29th April, and 21st May 2025 amounted to material non-disclosure and bad faith. He placed reliance on the case of **Kiama Wangai v John N. Mugambi & another** [2012] KEHC 4329 (KLR) and the Court of Appeal case of **Jane Njeri Karongo & Harisson Munga Karongo (Sued as the Legal Representative of the Estate of Rongo Kiuri & another v Hannah Wanjiku Kamau (Suing as the Legal Representative of the Estate of Kamau Kiuri Karongo** [2021] KECA 802 (KLR), and maintained that the plaintiff has abused the Court process through repeated applications and forum shopping, and it should not be allowed to benefit from the *ex parte* Order granted on 5th June 2025. **ANALYSIS AND DETERMINATION.** 1. I have considered the applications herein and the affidavits filed in support thereof, the Grounds of Opposition by the plaintiff and the written submissions filed by Counsel for the defendant. The issues that arise for determination are:- 2. ***Whether the Court should vary, postpone, or extend the period for compliance with the Statutory Notice issued by the defendant to the plaintiff;*** 3. ***Whether an order of temporary injunction and/or maintenance of status quo as at the time of filing the plaintiff’s application dated 4th June 2025 should issue against the defendant; and*** 4. ***Whether the ex parte orders issued on 5th June 2025 should be set aside and/or discharged.*** **Whether the Court should vary, postpone, or extend the period for compliance with the Statutory Notice issued by the defendant to the plaintiff.** 1. In seeking an order to vary, postpone or extend the period for compliance with the Statutory Notice issued by the defendant, the plaintiff placed reliance on the provisions of Section 104(2) of the Land Act and Order 50 Rule 6 of the Civil Procedure Rules, 2010, which provide that: - ***Section 104(2) of the Land Act*** ***A court may refuse to grant an order under subsection (1) or may grant any relief against the operation of a remedy that the circumstances of the case require and without limiting the generality of those powers, may: -*** 1. ***cancel, vary, suspend or postpone the order for any period which the court thinks reasonable;*** 2. ***extend the period of time for compliance by the chargor with a notice served under section 90;*** 3. ***substitute a different remedy or the one applied for or proposed by the chargee or a different time for taking or desisting from taking any action specified by the lessor in a notice served under section 90;*** 4. ***authorise or approve the remedy applied for or proposed by the chargee, notwithstanding that some procedural errors took place during the making of any notices served in connection with that remedy if the court is satisfied that: -*** 5. ***the chargor or other person applying for relief was made fully aware of the action required to be taken under or in connection with the remedy; and*** 6. ***no injustice will be done by authorising or approving the remedy, and may authorise or approve that remedy on any conditions as to expenses, damages, compensation or any other relevant matter as the court thinks fit.*** ***Order 50 Rule 6 of the Civil Procedure Rules: -*** ***Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:*** ***Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.*** 1. The relief being sought by the plaintiff herein, is premised on grounds that although it is indebted to the defendant, it has made deliberate and genuine efforts towards settlement of the outstanding sums. The plaintiff seeks a reasonable opportunity to redeem the charged properties through private arrangements rather than through an exercise of the statutory power of sale. The plaintiff placed before this Court evidence showing that on 12th May 2025 it entered into an Agreement for the sale of Plot Number 25 at a purchase price of Kshs.22 Million, and upon receipt of the deposit, paid the defendant USD 17,000.00, while also engaging the defendant with proposals for further payment. The plaintiff further averred that since the filing of this suit, it has made payments amounting to USD 34,000.00, and undertook to make a further payment of USD 17,000.00, within seven (7) days, which payment was subsequently made pursuant to the Court’s conditional Orders. 2. In addition to the foregoing, it is evident from the annexures attached to the plaintiff’s affidavits that it obtained a Valuation Report dated 6th March 2025 prepared at the defendant’s instance indicating that the forced sale value of the charged property stood at Kshs.15 Million, whereas the plaintiff had secured a purchaser willing to pay Kshs.22 Million for the same property. In light of the above, this Court is of the considered view that a private sale would not only secure a better return for the plaintiff but would also enhance the defendant’s prospects of recovering a larger portion of the outstanding debt. It would therefore be commercially prudent and equitable to allow the plaintiff a limited opportunity to complete the sale and apply the proceeds of the said sale towards liquidation of the debt. 3. Section 104(2) of the Land Act reproduced herein before grants Courts the discretion where justice demands, to extend or suspend the period for compliance with a Statutory Notice. Such discretion is intended to ensure that the statutory power of sale is exercised fairly and that a chargor is not unjustly deprived of the equity of redemption where there is evidence of willingness and capacity to redeem the property. In considering an application filed pursuant to the provisions of Section 104(2) of the Land Act, the Court must balance the defendant’s right as a chargee to realize its security against the plaintiff’s equitable right of redemption. 4. In the case of **Showcase Properties Limited v Kenya Commercial Bank Ltd** [2014] KEHC 6465 (KLR), the Court in allowing an application for extension of time to comply with the charge held that – ***The Plaintiff has also prayed for an order for extension of time to comply with the charge, and also requested for the substitution of the sought remedy with a different remedy under Section 104 (2) (b) of the Land Act, 2012. The Applicant cited the wrong provisions of the law that is Section 140 (1) and (2). That notwithstanding this court can correct an error on its own Motion and so I deem that application to have been made under Section 104 (2) (b) and (c) of the Land Act 2012. In addition and/or in the alternative the Plaintiff/Applicant has asked for one (1) year’s grace period before it can resume the loan repayment under the charge facility.*** ***There is a reason why this court is called a Commercial Court. Its Rulings and Judgments are foremost aimed to aid business, and not to kill them. Where there is a possibility that the party in default may be helped to come back to a profitable path, this court will most certainly lend a hand. The Plaintiff borrowed Kshs.200,000,000/=. It has since paid over Kshs.69,000,000/= and has fallen into arrears of over Kshs.33,000,000/=. I am inclined to give the Plaintiff a period of 10 months from the date of this Ruling to put its house in order and to commence the loan repayment.*** 1. In this case, while the defendant has demonstrated compliance with the statutory requirements preceding the intended sale and the plaintiff has not contested indebtedness to the defendant, I am persuaded that the plaintiff has shown seriousness in its efforts to regularize the account. The payments already made, the active proposals for disposal of other parcels of land, and the ongoing negotiations towards reduction of the debt are not mere promises but are supported by documentary evidence. This Court is therefore satisfied that the plaintiff is not merely seeking to delay the realization process but is making *bona fide* efforts to settle the debt. 2. This Court is also cognizant of the principle that the right of redemption should not be clogged where a chargor demonstrates a realistic and immediate plan to redeem the charged property. A forced sale at Kshs.15 Million when a purchaser offering Kshs.22 Million has been secured would occasion unnecessary prejudice to both parties. Allowing a short extension would better serve the interests of justice and substantive fairness. Further, this Court notes that the defendant remains protected since the debt is admitted, the securities remain intact, and the plaintiff has continued making payments. The prejudice likely to be suffered by the defendant through a limited extension is as such outweighed by the substantial prejudice the plaintiff would suffer through immediate realization of the security at a lower forced sale value. 3. In the circumstances, this Court finds that sufficient cause has been shown to warrant the exercise of its discretion under Section 104(2) of the Land Act. **Whether an order of temporary injunction and/or maintenance of status quo as at the time of filing the plaintiff’s application dated 4th June 2025 should issue against the defendant.** 1. On examination of the orders sought by the plaintiff in the application dated 4th June 2025, it is clear that the application primarily seeks an order for temporary injunction restraining the defendant, its agents, servants, assigns, or any persons acting on its behalf from selling or offering for sale the charged properties known as L.R. Nos. 18995/22, 18995/23, 18995/24, and 18995/25 located in Baba Dogo, Nairobi, pending the *interpartes* hearing of the application or in the alternative, that an order of *status quo* prevailing as at the time of filing the said application be maintained. 2. Accordingly, this Court is of the view that in light of the wording of the order being sought, even if it were to find that the plaintiff has established a case to warrant being granted the said orders, such orders cannot be issued as they effectively lapsed upon *interpartes* hearing of the application dated 4th June 2025. 3. To this end, I am guided by the Court’s holding in the case of **Catherine Njeri Macharia V Macharia Kagiob & Another** [2013] KEHC 4031 (KLR), where when faced with a similar situation, the Court made the following observation:- ***I accept and approve the holding by Hon. Justice Lesiit in HCCC No. 329 of 2003 ANO SHARIFF MOHAMMED VS. ABDULKADIR SHARIFF ABDIRAHIM and Hon. Justice Fred Ochieng in HCCC No. 2047 of 2000 WILFRED O. MUSINGO VS. HABO AGENCIES LTD where my colleague judges were faced with applications seeking prayers similar in wording as in the instant application by the plaintiff. Justice Lesiit rendered herself as follows in the case referred to:*** ***The prayer seeks a stay of execution of decree pending the hearing and determination of this application. The issue is that once the application is heard and determined then what. I do not think the prayer is worded correctly as the stay of execution should be prayed pending something other than the application itself. Considering this prayer and the manner it is worded, it is my view that the entire application is spent and that there remains nothing for me to stay.*** ***For his part Hon. Justice Ochieng rendered himself thus: -*** ***Now I revert to the orders sought by the Defendant. First it seeks an order of stay of execution pending the hearing and determination of this application. In other words, the very moment the court will have heard and determined the application dated 27thSeptember, 2005 there would be no orders for stay of execution. Therefore, even if I were to grant prayer 2 as prayed, it would lapse as soon as I finish reading this ruling. As on 28th October, 2005, I had already given an order staying execution until today.*** ***I hold that there is no need for the court to grant another order whose purport and effect would be the same as that which has already been given.*** 1. The above notwithstanding, it is not in contest that on 5th June 2025, Hon. Lady Justice Freda Mugambi, in dealing with the plaintiff’s application dated 4th June 2025 filed under certificate of urgency granted the plaintiff prayer No. 2 for a temporary injunction against the sale of the charged properties namely 18995/22, 18995/23, 18995/24 and 18995/25 on condition that the applicant pays to the respondent the amount of USD 17,000.00 within seven (7) days from the date of the Order, in default of which the temporary injunction Orders would automatically lapse without further recourse to the Court. 2. Having granted a conditional order for temporary injunction as sought in prayer 2 of the plaintiff’s application dated 4th June 2025, prayer 3 of the said application, which sought an alternative relief, was rendered moot. 3. In light of the foregoing, this Court finds that there are no orders remaining for the Court to grant or decline to grant once this Ruling is delivered, as the prayers sought in the application dated 4th June 2025 are spent. **Whether the *ex parte* orders issued on 5th June 2025 should be set aside and/or discharged.** 1. The defendant seeks the setting aside of the *ex parte* orders issued on 5th June 2025 on the basis that the plaintiff obtained the same through material non-disclosure and abuse of the Court process. 2. The record however shows that the Court on 17th September 2025 already held that the interim injunction granted by Hon. Lady Justice Freda Mugambi on 5th June 2025 would remain in place having been issued by another Court of competent and concurrent jurisdiction. In addition to the above, it is also noteworthy that the aforesaid interim injunction was meant to subsist pending the *interpartes* hearing of the plaintiff’s application dated 4th June 2025. 3. I am therefore of the considered view that the *exparte* orders issued on 5th June 2025 which the defendant seeks to set aside shall lapse upon delivery of this Ruling. This Court therefore needs not belabour as to whether or not the defendant has made out a case to warrant the setting aside and/or discharge of the said Orders. 4. The upshot is that the plaintiff’s application dated 21st May 2025 is merited, while the plaintiff’s application dated 4th June 2025 and the defendant’s application dated 1st July 2025 are not merited. 5. As a result, I make the following orders: - 6. **The period for compliance with the Statutory Notice issued by the defendant is hereby varied, postponed, and extended for a period of one hundred and twenty (120) days from the date of this Ruling to enable the plaintiff complete the intended private sale and make substantial settlement of the outstanding debt;** 7. **In default of compliance with order (i) above, the defendant shall be at liberty to proceed with the realization of its security in accordance with the law;** 8. **To enable actualization of the Order (i) of this Ruling, the *status quo* obtaining as at the date of this Ruling shall remain in place for one hundred and twenty (120) days;** 9. **The plaintiff’s application dated 4th June 2025 and the defendant’s application dated 1st July 2025 are hereby dismissed; and** 10. **Costs shall be in the cause.** It is so ordered. **DATED, SIGNED**and**DELIVERED**at**KIAMBU**on this**12TH** day of **JUNE 2026.** **Ruling delivered through Microsoft Teams Online Platform.** **NJOKI MWANGI** **JUDGE** **In the presence of:-** Mr. Wanga for the plaintiff Ms Saina h/b for Ondieki for the defendant Ms Julia – Court Assistant.