Maaru v Capital Sacco Ltd & another [2026] KEHC 13721 (KLR)

Maaru v Capital Sacco Ltd & another (Civil Appeal E058 of 2026) [2026] KEHC 13721 (KLR) (21 September 2026) (Ruling) Neutral citation: [2026] KEHC 13721 (KLR) Republic of Kenya In the High Court at Meru Civil Appeal E058 of 2026 SM Githinji, J September 21, 2026 Between Remmy Gikunda Maaru Applicant and Capital Sacco Limited 1 st Respondent Upstate Kenya Auctioneers 2 nd Respondent Ruling 1. For determination is the Notice of Motion dated 27/4/2026 pursuant to Order 40 of the Civil Procedure Rules and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act , seeking that: 1. Spent 2. Spent 3. The Honourable Court be pleased to issue an order for Temporary injunction restraining the Defendants/Respondents their agents or persons under their instruction from dealing /selling / or interfering in any way with land parcel no. L.R No.Nkuene/L-Mikumbune/1318 pending hearing and determination of the appeal.

4. The cost for this application be provided for.

2. The application is premised on the grounds that the 2 nd Respondent at the behest of the 1 st Respondent has advertised for sale land parcel No. L.R.No.Nkuene/L-Mikumbune/1318 (hereinafter referred to as the suit property) to the detriment of the Applicant, who resides there with the extended family. The Applicant and his family will suffer irreparable loss and damage if the Respondents are not restrained from carrying out the said sale by public auction, and the appeal, which has very high chances of success, will be rendered nugatory.

3. The 1 st Respondent opposed the application vide Replying Affidavits sworn by Peninah Karimi, its Debt Recovery Manager, on 5/5/2026 and 18/6/2026. She averred that the loan was granted courtesy of a charge in respect of the suit property, and the outstanding loan as of today stands at Ksh. 2,217,813.08, which is almost 5 times the share amount of Ksh. 498,600. Section 21 (2) of the Sacco Societies Act prohibits utilisation of shares for purposes of settlement of a loan, and the bank’s policy is that shares cannot be converted into cash unless the loan balance is at par with the shares. The Applicant failed to service the loan even after the same was reconstructed, thus necessitating the intention to auction the charged property to recover the outstanding balance. The 1 st Respondent issued a 90 days’ statutory demand notice, a 40 days’ notice of sale and a 45 days’ redemption notice as required by law. The suit property is agricultural land and not matrimonial home, and therefore the issue of eviction is neither here nor there. The loan was taken way back in 2015, and the applicant will not suffer any substantial loss if the suit property is sold to realize the outstanding balance.

4. The 2 nd Respondent did not file any response to the application.

5. The application was canvassed by way of written submissions which were filed by counsel for the applicant and the 1 st Respondent. Determination 6. The singular issue for determination is whether the injunctive orders sought should be granted.

7. The application is improperly brought under Order 40 instead of Order 42 Rule 6 (6) of the Civil Procedure Rules, which provides that; “Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its Appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” 8. The principles for grant of temporary injunction pending appeal were settled by the Court of Appeal in Venture Capital & Credit Limited v Consolidated Bank of Kenya Ltd Civil Application No Nairobi 349 of 2003 (174 of 2003 UR) quoted by the court (Alnashir Visram J, as he then was) in Patricia Njeri & 3 Others v National Museum of Kenya [2004] eKLR, as follows; a. an order of injunction pending appeal is a discretionary which will be exercised against an applicant whose appeal is frivolous. b. the discretion should be refused where it would inflict greater hardship than it would avoid. c. the applicant must show that to refuse the injunction would render the appeal nugatory. d. the court should also be guided by the principles in Giella vs. Cassman Brown [1973] EA 358.” 9. The Applicant contends that the sale of the suit property will render him and his family homeless, as they reside there. However, no evidence has been adduced to support that contention. The appeal, which the Applicant asserts has the highest chances of success, challenges the 1 st Respondent’s exercise of its statutory power of sale in respect of a property voluntarily offered as security for a loan. The outstanding loan balance is said to be Ksh. 2,217,813.08 and continues to accrue interest.

10. In my considered view, the grant of the injunctive relief would occasion greater prejudice and hardship to the 1 st Respondent, who would unnecessarily be restrained from realizing the security which was freely offered by the Applicant as a security for the loan advanced 10 years ago, and which to date, remains outstanding. There is a real possibility that the loan balance together with the accruing interest and other penalties may exceed the value of the charged property, thereby potentially exposing the 1 st Respondent to a further financial quagmire.

11. In Karani v Cheluget & 3 others; United Democratic Alliance Party & another (Interested Parties) [2025] KEHC 5579 (KLR), the court (Bahati Mwamuye J) espoused that; “Establishing only a prima facie case and demonstrating that it is possibly arguable is insufficient. A mere potential for argument does not justify a conservatory order; there must also be a clear indication of a likelihood of success.” 12. While the Applicant’s intended appeal is arguable, the likelihood of its success has not been demonstrated.

13. In the circumstances, I am not satisfied that the Applicant will suffer irreparable loss or damage incapable of adequate compensation by an award of damages, should the suit property be sold and the appeal ultimately succeed. The alleged loss if any, arising from the said sale is, in any event, quantifiable and capable of adequate recompense in damages.

14. Consequently, the balance of convenience undoubtedly lies on the refusal to grant of temporary injunction.

15. The upshot from the foregoing analysis is that the application dated 27/4/2026 is in want of merit and is hereby dismissed with costs to the 1 st Respondent. DATED AND DELIVERED AT MERU THIS 21 ST DAY OF SEPTEMBER, 2026. S.M. GITHINJI

JUDGE 21/9/2026 In the presence of:- Mr. Muriuki for the Respondent Mr. Otieno C. for the Appellant.