Mediheal Group Limited v Equity Bank Kenya Ltd (Civil Suit E013 of 2025) [2026] KEHC 8415 (KLR) (22 May 2026) (Ruling)

Mediheal Group Limited v Equity Bank Kenya Ltd (Civil Suit E013 of 2025) [2026] KEHC 8415 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 8415 (KLR) Republic of Kenya In the High Court at Eldoret Civil Suit E013 of 2025 JRA Wananda, J May 22, 2026 Between Mediheal Group Limited Plaintiff and Equity Bank Kenya Limited Defendant Ruling 1.The Plaintiff, a well-known private healthcare medical provider operating in various parts of the Republic of Kenya, filed this suit by way of the Plaint dated 14/04/2025. Together with the Plaint and the other usual Pleadings accompanying it, the Plaintiff also filed the Notice of Motion of the same date, the subject of this Ruling. The prayers now remaining in the Application are the following:“ 3.That a permanent injunction do issue to restrain and prevent the Respondents by themselves and/or their agents, servants, employees, assigns or otherwise howsoever from interfering with the Applicant’s quiet utilization and possession of jointly bought and/or financed hospital equipment, pending the hearing and determination of the main suit. 4.That the costs be provided for.” 2.The Application is filed through Messrs Aloo Romanus & Co. Advocates, and is supported by the Affidavit sworn by one Maryline Chepkosgei Lang’at who introduced herself as a Manager at the Plaintiff. She deponed that the Plaintiff was financed to purchase various medical equipment from the Defendant and is currently using the same to treat patients, that despite the Plaintiff paying the amounts as and when due, the Defendant has directed auctioneers to repossess the items despite the fact that even in the subject Agreement, it is clear that in the event of default, the innocent party should not sue nor repossess. She therefore deponed that the Defendant ought to first obtain a Court order before repossessing the items, and that in the circumstances, the Defendant risks being rendered destitute and inoperational by a process initiated per incuriam the law, and which, as such, ought to be halted to prevent this suit from being rendered nugatory. She also urged that there are subsisting preservative Court orders issued in other matters and unless the sale is stayed, then there shall be contradictory orders which can leave the Court in a dilemma. 3.In opposing the Application, the Defendant, through Messrs Gathara Mahinda & Co. Advocates, filed the Grounds of Opposition dated 17/01/2026 basically urging that the Plaintiff is a stranger to the Defendant with whom it has no contractual relationship as the Plaintiff has no locus standi to sue on behalf of Medi Heal Hospital & Fertility Centre Limited, which is an independent entity. It was also urged that granting an injunction would be tantamount to depriving the Defendant of its contractual right to repossess the chattels, which right has crystalized. It was further asserted that the issues in this suit are the same that are directly and substantially in issue in two previously filed suits, namely, Nairobi High Court Civil Suit No. E156 of 2023, and Eldoret High Court Civil Case No. E001 of 2024. It was then contended that the plaintiff has not demonstrated a prima facie case to warrant the grant of an injunction, nor has it given an undertaking as to damages, and that the Plaintiff has not to come to Court with clean hands as it has not disclosed Court that the Principal debtor, Medi Heal Hospital and Fertility Centre Limited, owed an outstanding loan balance of Kshs 110,000,000/- as at 17/12/2025. In the end, it was asserted that the debtors offered the properties as security with the full knowledge that in the event of default, the same would be sold to answer the debt. 4.The Defendant also filed the lengthy 36-paragraph Replying Affidavit sworn by Kariuki Kingori, who introduced himself as its Manager, Legal Services. He basically restated the matters already captured in the Grounds of Opposition, and added that the Defendant advanced to the Plaintiff an asset financing credit facility of Kshs 20,750,000/- to Medi Heal Hospital and Fertility Centre Limited, in which the Plaintiff is simply a shareholder and director. He deponed that in Nairobi High Court Civil Suit No. E156 of 2023, the borrower, Medi Heal Hospital and Fertility Centre Limited, was by the way of the Ruling delivered on 18/04/2023 by C. Mwita J, granted a temporary injunction on the condition that it pays Kshs 5,000,000/- within 10 days, which condition the borrower did not meet and the injunction lapsed, and as such, the Defendant issued fresh repossession instruction to the auctioneers. He deponed that while the said suit was pending, the borrower filed a second suit, namely, Eldoret CMCC No. E503 of 2023, and later, also Nairobi High Court Civil Suit No. E156 of 2023, and the said Eldoret High Court Civil Case No. E001 of 2024 without disclosing existence of the earlier suit. According to him therefore, this instant suit is a malicious attempt to circumvent the order made in the earlier suit, which conduct, and the filing of multiple suits by the Plaintiff and its subsidiary companies in different Courts, is an abuse of the Court process, and that the matter is now Res Judicata. He protested that the Plaintiff and/or the borrower are wasting away the security motor vehicles and the Defendant is apprehensive that should that trend continue, even sale proceeds thereof might not be enough to answer the debt herein. In the end, he asserted that the Defendant is a banking institution with vast resources and therefore capable of compensating the Plaintiff should the repossession be found to have been irregularly exercised. 5.I then gave the parties leave to file written Submissions. However, only the Plaintiff appears to have filed the Submissions dated 12/03/2026 despite the timeline given to the Defendant having lapsed. I say so because I have not come across any Submissions from the Defendant either in the physical file or in the Judiciary Case Tracking System (CTS) online portal. Plaintiff’s Submissions 6.Mr. Aloo, Counsel for the Plaintiff, termed the repossession as an illegality and submitted that in Kenya, a Lender cannot move to repossess without first notifying the borrower of the alleged default. He cited Rule 12(1)(c) of the Auctioneers Rules which requires a 7 days’ notice, and also Section 67 of the Movable Property Security Rights Act, No. 13 of 2017. According to him, the Defendant, by issuing a letter of intent to repossess without first serving the mandatory proclamation and redemption notice, attempted to bypass the law. In respect to the grant of injunction, Counsel cited the usual authorities of Giella v Cassman Brown & Company Limited (1973) EA 358, and the case of Nguruman Limited v Jane Bonde Nielsen and 2 Others, NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR, among others. Determination 7.The issue herein is evidently “whether the Defendant should be restrained by way of an interim injunction from seizing or repossessing from the Plaintiff, the equipment, (motor vehicles) financed by the Defendant and jointly registered in the two parties’ joint names, pending hearing and determination of the suit” 8.Determination on whether to grant interim injunctions is governed by Order 40 Rule 1 of the Civil Procedure Rules which provides as follows;“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. 9.The principles that apply in applications for injunctions were well settled in the case of Giella –vs-Cassman Brown and Company Limited, Civil Appeal No. 51 of 1972, in which it was held that the Applicant must establish or demonstrate; (i) the existence of a prima facie case with a probability of success, (ii) that he will suffer irreparable injury which cannot be compensated by damages, and (iii) that balance of convenience tilts in its favour. 10.Further, in Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR, the Court of Appeal reiterated the above principles as follows:“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. (See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86). If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.” 11.It is also settled that in interim applications, such as in this case, the Court should avoid making final determinations on matters of fact made on the basis of the conflicting Affidavit evidence. In connection thereto, in Mbuthia vs Jimba Credit Finance Corporation & Another [1988] KLR 1, the Court of Appeal guided as follows:“…the correct approach in dealing with an application for an interlocutory injunction is not to decide the issues of fact, but rather to weigh up the relevant strength of each side’s propositions.” 12.The first limb that I have to therefore determine is whether the Plaintiff has established a prima facie case. What constitutes a “prima facie” case was discussed in the case of Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, in which the Court of Appeal held as follows:“It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence ... The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case standard rather than one of a prima facie case, the former being the lesser standard of the two ... In civil cases a prima facie case is 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 to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.” 13.In this case, it is evident from the Plaintiff’s Supporting Affidavit and List of Documents that the contract the subject of this matter is the Letter of Offer issued by the Defendant dated 4/03/2020, and addressed to the entity described as Medi Heal Hospital and Fertility Centre Limited, which entity seemingly accepted the terms thereof by duly signing the same. The Plaintiff has indeed exhibited a copy of that Letter of Offer. The Plaintiff in the present suit is however described as Mediheal Group Limited. The Defendant, both in its Grounds of Opposition and Replying Affidavit filed herein, raised the challenge that the Plaintiff herein, Mediheal Group Limited, is a stranger to the Defendant with whom it has no contractual relationship and that, as such, the Plaintiff has no locus standi to sue on behalf of Medi Heal Hospital & Fertility Centre Limited, which is an independent entity. I agree considering that neither in the Plaint nor in the Supporting Affidavit is any explanation whatsoever given on the relationship, if any, between the entity described as Mediheal Group Limited, the Plaintiff in this suit, and Medi Heal Hospital & Fertility Centre Limited, the entity that entered into the subject contract. On the face thereof therefore, the two, both described as limited companies, are separate entities. Despite granting the Plaintiff the opportunity to file a Supplementary Affidavit in which it could have responded to this challenge, I have not come across any such Supplementary Affidavit. This therefore means that the challenge raised by the Defendant on the issue of locus and privity of contract remains unanswered. On this ground alone, the Plaintiff has failed to establish a prima facie case with a probability of success. 14.The Defendant also contended that the issues in this suit are directly and substantially in issue in two previously filed suits, namely, Nairobi High Court Civil Suit No. E156 of 2023, and Eldoret High Court Civil Case No. E001 of 2024. He deponed that in Nairobi High Court Civil Suit No. E156 of 2023, the borrower, Medi Heal Hospital and Fertility Centre Limited, was by the way of the Ruling delivered on 18/04/2023 by C. Mwita J, granted a temporary injunction on the condition that it pays Kshs 5,000,000/- within 10 days, which condition the borrower did not meet and the injunction lapsed, and that as such, the Defendant issued fresh repossession instruction to the auctioneers. The Defendant also contends that while the said suit was pending, the borrower filed Eldoret CMCC No. E503 of 2023, and later, also Nairobi High Court Civil Suit No. E156 of 2023, and the said Eldoret High Court Civil Case No. E001 of 2024 without disclosing existence of the earlier suit. It is therefore submitted that the instant suit is an attempt to circumvent the order made in the earlier suit, which conduct, and the filing of multiple suits by the Plaintiff and its subsidiary companies, in different Courts, is an abuse of the Court process, and that the matter is now Res Judicata. 15.As aforesaid, despite granting the Plaintiff the opportunity to file a Supplementary Affidavit in which it could have responded to all these challenges, the Plaintiff does not seem to have taken advantage of that opportunity. I am however reluctant to make a determination on this issue of multiple suits since the Defendant, apart from exhibiting copies of the Plaint and some other pleadings filed in the said suits, has not in any way demonstrated that the contract herein is the same one the subject of those other suits. I say so because the Plaints and the other pleadings exhibited do not make any reference to the contracts involved. 16.It is also not lost on me that the Defendant has exhibited bank statements demonstrating that there was an amount of Kshs 27,292,256.04 owing as at 16/12/2023 under the facility, which statement, the Plaintiff not having filed a Supplementary Affidavit, has not controverted. The Plaintiff, apart from merely claiming, generally, that it has been paying the amounts as and when due, nothing has been exhibited to demonstrate that the said amount was paid in full. 17.Regarding the Plaintiff’s claim that the attempted repossession is an illegality because a Lender cannot move to repossess without first notifying the borrower of the alleged default, it relied on the case of Co-Operative Bank of Kenya Ltd v Amasi [2024] 12691, which however the Plaintiff’s Counsel did not supply a copy to the Court. However, researching on my own, the copy I have come across actually advances the opposite position and thus goes against the Plaintiff. I say so because in the copy I have come across, Aburili J in fact held that a hire purchase agreement may legally allow for repossession without notice upon default, making compliance with strict notice requirements not always a condition precedent for all types of breaches. As such, the Judge upheld the Hire Purchase Agreement terms, noting that it permitted the bank to repossess the subject motor vehicle without notice upon the death of the hirer, upon default 18.In the second case relied on by the Plaintiff, namely, the decision of J.N. Njagi J, in the case Barasa v Momentum Credit Limited 2025] KEHC (KLR), the Court did not make any determination on the issue of service of notice before repossession and ruled mainly on the basis of failure by the Lender to explain the astronomical escalation of the alleged arrears. 19.The third case, the decision of J.W. Mongare J, in Njoroge v Baron Capital Limited & Another (Civil Suit E136 of 2023) [2023] KEHC 20998, is the one that is applicable to some extent on the issue of service of notice, although, it too, was decided on the basis of various other irregularities identified by the Court in the process of repossession, including the existence of doubts whether Defendant was legally recognized as a money-lending institution. 20.Be that as it may, I agree that generally speaking, notice is required before repossessing assets in financing transactions. Rule 12(1)(c) of the Auctioneers Act, indeed requires that lenders must issue a 7 days’ formal demand letter or notice of default, allowing the borrower time to rectify the default before hiring an auctioneer to repossess goods. This, therefore, will be the default interpretation where the contract is silent on the issue of notice. In this case, Clause 12(1)(c) of the Letter of Offer does not require service of notice. It stipulates as follows:“ 12.Default & Termination 12. 1If the Borrower shall make default in payment of any monthly sum payable hereunder for seven (7) days after the same shall have become due or shall fail to observe the terms and conditions of this agreement or if the Borrower becomes bankrupt or a receiver is appointed of his property or if distress or execution is levied against his property or if the Borrower shall do or cause to be done or permit or suffer any act or thing whereby the Lender's rights in the said Motor Vehicle may be prejudiced or put in jeopardy, the Lender may without prejudice to the Lender's claim for breach of this contract, terminate the Agreement without notice and retake possession of the Motor Vehicle and it shall be lawful for the Lender, its agents or servants to enter upon any premises where the Motor Vehicle may be and seize and take possession thereof.” 21.My own opinion is however that for purposes of good order, a formal notice is still generally required before repossession even if the contract is silent on the requirement. In any event, Section 67 of the Moveable Property Security Rights Act, 2017, also requires lenders to serve a written notice informing the debtor of the default and giving them a chance to rectify it before taking possession, thus ensuring due process. 22.In this case however, I think the Plaintiff jumped the gun. I say so because the letter exhibited, dated 17/03/2025 from the Defendant, is addressed to the Auctioneers only, with nothing thereon showing that it was copied to the Plaintiff. How it landed in the Plaintiff’s hands is not well explained with the only semblance of disclosure appearing, not in the Supporting Affidavit, but in the body of the Plaint, where it is casually alleged in passing, that “the defendant received the letter from one of its employees”. No explanation is offered on how the alleged employee came to be in possession of a letter that was not addressed to him or his employer in the first place. I may be wrong but in the absence of any explanation, my only recourse is to believe that the letter, on the face of it, was, for all intents and purposes, an internal confidential communication strictly between the Defendants and its Auctioneers, giving instructions to repossess the motor vehicles. Since no attempt to effect these instructions is alleged to have been made as yet, the Application for injunction seems premature since to my understanding, the Auctioneer was yet to act on the instructions. It has not been alleged that the Auctioneer, upon receiving the letter, would not have first served notice before effecting the repossession. 23.For the above further reasons, my finding is that the Plaintiff have failed to demonstrate the existence of a prima facie case. 24.Having found that no prima facie case has been established, it is no longer necessary to consider the second and third limbs of the rule in Giella vs Cassman Brown. For this position, I refer to the case of Nguruman Limited v Jane Bonde Nielsen and 2 Others, NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR, where the Court of Appeal reiterated as follows:“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. (See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86). ………. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration ………...” 25.For the foregoing reasons, it is clear that the Plaintiff has failed to satisfy the threshold required for grant of an interlocutory injunction. The Application therefore fails. Final Orders 26.The upshot of my findings above is that the Plaintiff’s Notice of Motion dated 14/04/2025 is hereby dismissed with costs to the Defendant. DELIVERED, DATED AND SIGNED AT ELDORET THIS 22ND DAY OF MAY 2026……………………..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:N/A for the Plaintiff-ApplicantMs. Wangari h/b for Mr. Mahinda for the DefendantCourt Assistant: Rodgers Tshombe