Kenya Women Microfinance Bank Ltd & another v Mburu & another (Environment and Land Appeal 14 of 2021) [2026] KEELC 5239 (KLR) (29 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA** **ELC APPEAL NO. 14 OF 2021** 1. **KENYA WOMEN MICROFINANCE BANK LTD** 2. **SAMUEL KARIITHI RURIGI** **T/A QUICKLINE AUCTIONEERS .............................APPELLANTS** **=VERSUS=** 1. **MARY WAMBUI MBURU** 2. **SAMUEL MBURU NGUGI…………………………..RESPONDENTS** ***(Being an Appeal arising from the ruling of Hon P. M Mugure, Principal Magistrate, delivered on 26th July 2021 in Wang’uru PMC E & L Case No 12 of 2021)*** **JUDGEMENT** 1. **INTRODUCTION** 2. This appeal challenges the Ruling rendered by **Hon P. M Mugure, Principal Magistrate**, on **26th July 2021** in **Wang’uru PMC E & L Case No. 12 of 2021.** The key question that fell for determination in the application dated ***19th April 2021*** who’s ruling the appellants are contesting, ***was whether or not the court should issue a prohibitory order stopping further dealings, registration and transactions over land*** parcel number ***No. Mwea/ Tebere/B/1986*** 3. This is also the key question that falls for determination in this appeal. 4. Before I analyse and dispose the issue, I will outline, in brief, the background to the appeal; the grounds of appeal; and the parties’ respective submissions in the appeal. 5. **BACKGROUND** 6. Through an amended plaint dated **19th April 2021**, the respondents instituted **Wang’uru PMC E&L Case No. 12 of 2021** against the appellants, seeking: 7. ***A declaration that the statutory notices of sale, notification of sale, redemption notice and the sale of land parcel No. Mwea/Tebere/1986 by the appellants by way of public auction on 26th February 2021 was illegal, fraudulent, null and void;*** 8. ***An order setting aside and revoking the Statutory Notices of sale, Notification of sale, redemption notice and the Public Auction conducted on 26th February 2021 and transfer to any third party;*** 9. ***Costs and interest of the suit and;*** 10. ***Any other relief the court may deem fit and just to grant.*** 11. The case of the respondents was that on or about **13th July 2016**, the **1st respondent** took a credit facility from the **1st appellant** of **Kshs. 3,000,000/=** which facility was to be serviced within a period of ***forty-eight (48) months*** at a monthly instalment of **Kshs. 97,480**. They contended that the **1st respondent** provided parcel No. ***Mwea/Tebere/B/1986*** as security. 12. The respondents further contended that despite financial constraints, they managed to service the loan and the remaining balance was **Kshs. 800,000.** It was their case that they discovered that land parcel ***Mwea/Tebere/B/1986*** was sold to a third party on **26th February 2021** through a public auction despite the lack of service of the statutory notice of sale, adding that they were denied an opportunity to redeem the suit property. They itemized particulars of illegalities and irregularities. 13. The appellants filed a statement of defence in which they contested the respondents’ claim. The appellants’ case was that the ***1st appellant granted a loan of Kenya shillings three (3) million to the 1st respondent*** against parcel ***Mwea/Tebere/B/1986*** as security and the personal guarantee of the **2nd respondent**. They contended that the **1st respondent** had not been servicing the loan as agreed, which prompted the **1st appellant** to exercise its statutory power of sale to realize the charge. 14. The appellants added that the suit parcel was sold in a public auction held on **26th February 2021** and denied the **2nd respondent's allegations** that he had not been served with statutory notices. It is their case that the auction was conducted within the law. 15. The appellants further stated that the suit parcel was sold to the highest bidder, thus the ***2nd respondent's right of redemption was extinguished. The appellants argued that the suit against them*** is frivolous, incompetent and an abuse of the court process and should consequently be dismissed. 16. Subsequently, the respondents filed a Notice of Motion application dated **19th April 2021** seeking orders that, ***the court issue a prohibitory order stopping further dealings, registration, and transactions over the land parcel no. Mwea/Tebere/B/1986.*** 17. Upon receiving evidence and submissions, the trial court reached a finding that the balance of convenience tilts in favor of granting the orders of prohibition sought, and thus proceeded to allow the application with directions that costs do remain in the cause. 18. **APPEAL** 19. Aggrieved by the findings and decree of the trial court, the appellants brought this appeal, advancing the following **twelve (12) grounds of appeal;** * 1. ***The Learned Trial Magistrate erred in law and fact in holding that the respondents had demonstrated a prima facie case, damages are not sufficient compensation and that the balance of convenience tilted in favour of the respondents and thereby allowed the respondents/plaintiffs’ Notice of motion dated 19th April 2021 and awarded the prohibitory injunction orders sought which was against the weight of the evidence before the court and the applicable law and thereby lead to a miscarriage of justice.*** 2. ***The Learned Trial Magistrate erred in law and in fact by failing to appreciate that the 1st Appellant had complied with the statutory duty to effect service upon the respondents of the requisite statutory notices provided under section 90 and 96(2) respectively ,of the Land Act No.6 of 2012.Laws of Kenya, and therefore did not infringe on the 2nd respondent’s statutory right nor fettered and or clogged the 2nd respondent’s right of redemption of the charged property and thereby arrived at a wrong decision.*** 3. ***The Learned trial Magistrate erred in law and in fact by disregarding the law and equity of redemption and particularly failing to comprehend the 2nd respondent’s right of redemption of charged property was extinguished at the fall of the hammer at the auction sale undertaken and thereby arrived at a wrong decision.*** 4. ***The Learned trial Magistrate erred in law and fact by upholding the Respondent’s application and granting a prohibitory order against the charged property. Title No. Mwea/Tebere/B/1986 despite the knowledge the same was sold at the auction transferred to a third party, who was not a party to the proceeding and therefore prejudicial to the purchaser.*** 5. ***The Learned trial Magistrate erred in failing to comprehend and appreciate the protection to which a purchaser of the suit property at an auction is entitled as envisaged under Sec 99 (3) and (4) of the Land Act No.6 of 2012 and hereby arrived at a wrong decision.*** 6. ***The Learned Trial Magistrate erred in law and fact in holding the suit property was sold by the appellants in breach of statutory provisions which would occasion the respondents irreparable loss and therefore reached a wrong decision.*** 7. ***The Learned trial Magistrate erred in law and in fact in failing to appreciate that the plaintiff’s notice of motion had no foundation to stand on, by holding that the plaintiffs’ suit was seeking for a permanent injunction, when the amended plaint on record with particulars of irregularities, instead seeks for declaratory orders and thereby made a wrong decision.*** 8. ***The Learned trial Magistrate erred in law and in fact in holding that the respondents/plaintiffs resided in the suit premises and the sentimental value attached to the suit land would not be compensated in damages despite the valuation report tendered in evidence by the appellant, indicating there was no structural improvement on the land, but bear land, abound with natural vegetation and thereby arrived at a wrong decision.*** 9. ***The Learned trial Magistrate erred in law in failing to appreciate that the 1st appellant had issued cheques to the 2nd respondent for payment of the balance of the purchase price after offsetting the loan amount and therefore arrived at a wrong decision.*** 10. ***The Learned trial magistrate erred in law and fact in shifting the burden of proof to the appellants, when they had no such obligation and thereby arrived at a wrong decision.*** 11. ***The learned trial magistrate did not exercise her discretion judiciously.*** 12. ***The Learned trial magistrate erred in law in failing to evaluate the evidence tendered by the appellants nor take cognizance of the Appellant’s submissions and the case laws put to her and hereby arrived at a wrong decision.*** 20. The appellant urged this court to allow the appeal and set aside the impugned ruling in its entirety with costs, both for the lower court and the appeal. 21. **APPELLANTS SUBMISSIONS** 22. The appellants filed written submissions dated ***4th March 2026*** through **M/s Gathara Mahinda & Company Advocates.** Counsel for the appellants identified the following ***four (4) issues as due for determination; -*** * + - 1. ***There was service of the Statutory Notice, redemption and notification of sale;*** 2. ***whether the charged property compromise matrimonial home and if the property is sold the respondent will suffer irreparable loss or their family be rendered destitute to the world;*** 3. ***Whether the plaintiff had raised a prayer for a permanent injunction in the pleadings*** 4. ***whether the discretion of the trial magistrate can be faulted in granting a prohibitory order.*** 23. ***On whether statutory notices were issued,*** counsel submitted that the respondents alleged they were not served with any statutory notices though their ***replying affidavit, sworn on 31st March 2021*** demonstrate that the realization process began around **July 2018.** Counsel further submitted that the ***2nd respondent was duly served*** with all the requisite statutory notices and they relied on annexures **EMM 4,5,6,7a to c.** 24. ***On whether the exercise of the statutory power of sale was proper,*** counsel submitted that he invited the court to peruse the ***1st appellant’s bank statement,*** which had an outstanding debt of ***660,482.37 as at 4/9/2020***. Counsel argued that the 1st appellant ought not to be curtailed from exercising its statutory power ofsale. Counsel relied on **Section 96 of the Land Act No. 6 of 2012.** 25. Counsel further relied on the pronouncement of **Mrao Ltd vs First American Bank of Kenya Ltd (2003) KLR and Priscilla Krobought Grant vs Kenya Commercial Finance Co Ltd and 2 Others, Civil Application No. Nai 227 of 1995 (108/95) (unreported).** 26. ***On whether the respondents were allowed to redeem their loan,*** counsel argued that the respondents did not deny that they had failed to pay their loan and that from the ***1st appellant’s annexure EMM9*** demonstrates that the suit parcel was sold at an auction on ***26th February 2021***, thus the respondents' rights of redemption were extinguished on that day. 27. ***On irreparable loss,*** counsel submitted that any person prejudiced by an improper power of sale has a remedy in damages. Counsel relied on the case of ***Bii vs Kenya Commercial Bank Limited (2001) KLR 458, Sammy Japheth Kavuku v Equity Bank Limited & another (2014) and Maithya v Housing Finance Co. of Kenya & Anor (2003) 1EA 133.*** 28. ***On the issue of discretion of the trial court,*** counsel argued that the trial magistrate had failed to consider the principle in granting inhibition orders and arrived at a wrong finding. 29. **2ND RESPONDENTS’ SUBMISSIONS** 30. The **2nd respondent** opposed the appeal through written submissions dated **22/6/2026,** filed by **M/s Kinyua Kiama & Company Advocates.** The respondent’s counsel identified the following ***three (3) issues as falling for determination; -*** 31. ***whether or not, the trial court erred in holding the respondents had demonstrated a prima facie case;*** 32. ***whether or not, the trial court erred in holding that the respondent was to suffer irreparable loss and;*** 33. ***whether or not, the trial magistrate erred in allowing the application despite the fact that the suit land was sold at a public auction.*** 34. ***On whether the respondents proved a prima facie case***, counsel submitted that the respondents pleaded that the suit parcel was sold in an auction without a proper redemption notice and notification of sale. 35. Counsel further submitted that though the appellants produced a copy of the notice to demonstrate that service was duly effect, that position is contested. Counsel added that the ***45-day redemption notice was not served,*** hence in their view, a prima facie case had been established to merit the orders, they were seeking. Counsel relied on the case of ***Mrao Ltd v First American Bank of Kenya & 2 Others (2003) KLR*** to affirm this position 36. ***On whether irreparable loss was proved by the respondent,*** counsel argued that the appellants failed to produce evidence that land had been registered to a new owner. Thus, the respondents were apprehensive that the land would be transferred to other parties to their detriment. 37. ***On whether the trial court erred by granting the prohibitory orders,*** counsel submitted that the court needed to prevent any further dealings of the land, and it was necessary to preserve the suit property. Hence in their view, the orders issued were merited and the court should dismiss the appeal as it lacked merit. 38. **ANALYSIS AND DETERMINATION** 39. I have read and considered the original record of the trial court and the record filed in this appeal; the grounds of appeal; and the parties’ respective submissions. 40. The key question for determination in this Judgement is whether or not, ***the trial court exercised its discretion properly in granting the orders of prohibition.*** 41. Before I analyse and dispose the issue, I will briefly outline the principle that guides this court when exercising appellate jurisdiction. 42. The task of a first appellate court was summarized by the Court of Appeal in the case of ***Susan Munyi v Keshar Shiani (2013) eKLR*** where the court held; ***“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”*** 1. The principle was similarly outlined in ***Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR***as follows: ***“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”*** 1. ***The main contention in this appeal is whether or not, the trial magistrate exercised her discretion properly to grant the prohibitory order?*** 2. By definition, ***a prohibitory order is, by and large, an interlocutory injunctive relief that bars registration of dealings in a land register pending the hearing and disposal of a suit.*** 3. The three main principles guiding issuance of an interlocutory injunction were outlined by the East African Court of Appeal case of ***Giella v Cassman Brown (1973) EA 358.*** 4. In this case, the court observed that as a matter of course, the applicant should first and foremost, ***demonstrate a prima facie case with a probability of success.*** Secondly, the applicant is required to ***demonstrate that if the plea for an interlocutory injunction is declined, he will suffer injury that may not be adequately indemnified through an award of damages and lastly, where the court has doubt on either or both of the above, the application is to be determined on the basis of a balance of convenience.*** 5. Over the years, superior courts have developed a ***fourth principle*** to the effect that, ***at the stage of disposing the plea for an interlocutory injunction,*** the court should refrain from making conclusive or definitive pronouncements on the key issues in the dispute. The courts have emphasized that, ***definitive and conclusive pronouncements/findings should be reserved for the final disposal of the dispute.*** 6. On what constitutes a prima facie case, the Court of Appeal in the case of ***Mrao limited v First American Bank of Kenya Ltd & 2 others*** held that: ***“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is 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.”*** 1. In the present case, the respondents narrated that on or about ***13th July 2016***, the ***1st respondent*** applied for a credit facility of ***Kshs. 3,000,000*** from the ***1st appellant*** and the same was to be serviced within a period of 48 months at a monthly instalment of **Kshs 97,480**. The ***1st respondent*** further stated that he repaid the loan and was left with an outstanding balance of ***Kshs. 800,000*** to settle the credit in full. 2. Sometimes, in 2021, the ***2nd respondent*** averred that he discovered, parcel no. ***Mwea/Tebere/B/1986*** had been sold to a third party on ***26th February 2021 without proper service of the statutory notice, notification of sale, and redemption notice.*** It was their case that the ***2nd appellant*** informed them that the suit property was sold to one ***Ephantus Wachira Kithoka*** for ***Kshs. 4,000,000*** adding that he was apprehensive that the suit parcel would be further subdivided and disposed of if the orders sought are not granted. 3. On the other hand, the case of the appellants was that, the sale of the suit property was done by public auction and the **1st respondent** executed the transfer and released the suit property to the purchaser, **Ephantus Wachira Kithoka.** The appellants contended that the respondents’ rights were extinguished and their remedy lies in damages, if any. 4. The appellants further averred that the respondents did not make out a prima facie case to merit the interlocutory injunction sought, thus the application ought not to have been allowed. 5. ***On whether, the respondents established a prima facie case,*** I have considered the provisions of ***Section 90(1) of the Land Act, 2012 which*** provides that: “ ***If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be in default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.”*** 1. On the other hand, ***Section 96(1)*** of the same Act provides that: ***“Where a chargor is in default of the obligations under a charge and remains in default at the expiry of the time provided for the rectification of that default in the notice served on the chargor under section 90 (1), a chargee may exercise the power to sell the charged land.”*** 1. In this case, the ***1st respondent conceded that he was in default of the loan agreement entered into between him and the 1st appellant.*** He also contended that he was not served with the notices. However, the ***appellants attached notices to confirm issue and service.*** I am therefore not persuaded that a prima facie case was established by the respondents to meet the baseline for grant of the interlocutory relief. 2. ***On irreparable injury that may not be indemnifiable through an award of damages,*** the property has already been sold through an auction to ***Ephantus Wachira Kithoka***. I do not think there will be any irreparable injury that cannot be quantified by way of damages 3. In the circumstances, I hold and find that ***there is no proper justification and/or basis for grant of the prohibitory order sought by the respondents.*** 4. In my view, the application dated ***19th April 2021 did not meet the threshold to allow grant of the prohibitory order as was sought before the trial court.*** 5. **DISPOSITION AND ORDERS** 6. Cascading from the foregoing, I find and hold that the appeal succeeds in principle and the ruling dated ***26th July 2021***, allowing the respondents’ Notice of Motion application dated ***19th April 2021*** is hereby set aside. 7. In its place, the motion stands dismissed with directions that the respondents do bear the costs of this appeal. 8. It is so ordered. **RULING DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT CHUKA THIS 29TH JULY 2026.** **L.T. LEWA** **JUDGE** **IN THE PRESENCE OF:** **Court Assistant – Ms. Nelly/Mr. Musyimi** **Appellant – Ms. Watutu holding brief for Mr. Mahinda** **2ND Respondent – Ms. Naliaka holding brief for Mr. Kiama**