https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7335

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **COMMERCIAL CASE NUMBER E001 OF 2026** **PAUL WACHIRA MUGO** **PAULINE THIGUKU MBURIA PLAINTIFFS/APPLICANTS** **T/A MUMLOCK ACADEMY** **VERSUS** **EQUITY BANK LIMITED …………… 1ST DEFENDANT/RESPONDENT** **EDWIN MWANGI WAIRAGU** **T/A TRADE WIDE AUCTIONEERS… 2ND EFENDANT/RESPONDENT** **RULING** 1. By the Notice of Motion dated 13.01.2026, the Plaintiff sought the following reliefs: 2. Spent 3. There be temporary stay of execution and or/sale of property known as LR Konyu/Baricho/1581, pursuant to the notification of sale issued by the Trade Wide Auctioneers on behalf of the first defendant, pending hearing and determination of this application. 4. There be stay of execution and or/sale of said property pending hearing and determination of this suit 5. Upon grant of stay the plaintiffs/applicants do undertake to pay a sum of Ksh 100,000/= only being part of the the loan repayment and undertake Ks, 1,500,000/= per school term towards liquidation of outstanding loan repayment. 6. Costs of this application be in the cause. 7. The application is based on the grounds stated in the application as well as the Supporting Affidavit of Pauline Thiguru Mburia stating as follows: 8. The first Respondent has instructed auctioneers. 9. They have their property, LR Konyu/Baricho/1581, valued at Ksh. 94,500,000/=, being sold at a loss of Ksh. 23,103,082.08/=. 10. The payment lagged behind due to economic times. 11. They were willing to paying stated instalments. 12. They have a school with 300 pupils that run a risk of being disadvantaged. 13. The main prayer in the plaint is to compel the respondent to accept Ksh 200,000/= immediately and Ksh. 1,500,000/= as termly payments. 14. The first respondent filed a defence and a replying affidavit. Essentially there is no dispute on the loan, service of notices and advertisement. The respondent submitted that the applicants have not met the threshold of *Giella vs. Cassman Brown & Co. Ltd [1973] EA 358*. They submitted that the value of the property is Ksh. 42,000,000/=. 15. They relied on the case of **Mrao [Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2003/175/eng%402003-03-07)**, where the Court of Appeal [RO Kwach, SEO Bosire & EO O'Kubasu, JJA], per Kwach JA, noted that: The principles governing the grant of interlocutory injunctions as set out in Giella v Cassman Brown and Co Ltd [1973] EA 358, have been lucidly analysed by Bosire JA. In recent times a tendency has developed in the Superior Court of treating applications by a mortgagor for a temporary injunction to restrain a mortgagee from exercising his statutory power of sale just like any application for injunction in an ordinary suit. The circumstances in which a mortgagee may be restrained from exercising his statutory power of sale are set out in Halsbury’s Laws of England, Vol 32 (4th edition) paragraph 725 as follows:-“ 725When mortgagee may be restrained from exercising power of sale. The mortgagee will not be restrained from exercising his power of sale because the amount due is in dispute, or because the mortgagor has began a redemption action, or because the mortgagor objects to the manner in which the sale is being arranged. He will be restrained, however, if the mortgagor pays the amount claimed into court, that is, the amount which the mortgagee claims to be due to him, unless, on the terms of the mortgage, the claim is excessive.”(emphasis added) 1. They posited that the respondents have not infringed any of the applicants’ rights. It was their submission that the law on injunction was settled in the case of [**Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/606/eng%402014-04-04). 2. Regarding the issue of dispute on the amount, they relied on the case of [**Peter Kairu Gitu v KCB Bank Kenya Limited & another [2021] KEHC 7203 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/7203/eng%402021-05-06)**,** where W. A. Okwany, J, held as follows: 11. As I have already stated in this ruling, the applicant’s main contention is that the outstanding loan amount is grossly overstated. I find that it is trite law that a dispute as to the outstanding loan amount cannot be a ground for granting an order of injunction. This is the position that was adopted in Mrao Limited v First American Bank of Kenya Ltd & others (supra) where the court addressed itself thus: - "The mortgagee will not be restrained from exercising his power of sale because the amount due is in dispute, or because the mortgagor has begun a redemption action, or because the mortgagor objects to the manner in which the sale is being arranged. He will be restrained, however, if the mortgagor pays the amount claimed into court, that is, the amount which the mortgagee claims to be due to him, unless, on the terms of the mortgage, the claim is excessive.” 12. In the present case, I note that it is not disputed that the applicant obtained a loan facility of Kshs 6.2 million from the 1st defendant and that he charged his property being L.R. No. 12913/19 (I.R. No. 39168) as security for the said loan. It is also not disputed that the applicant fell into arrears on the loan repayments thus precipitating the 1st defendant’s move to exercise of its statutory power of sale of the suit property. I note that even though the applicant states that he has been faithfully servicing the loan, no material was placed before the court to confirm this. Indeed, the 1st respondent demonstrated, through various annexures, that the applicant made numerous but unfulfilled promises to settle the debt. The applicant did not also demonstrate that he is ready, able and willing to continue servicing the loan. 13. I am therefore not satisfied that the applicant has established a prima facie case so as to warrant the granting of the orders of injunction. Needless to say, it is trite law that he who comes to equity must come with clean hands and in this case, the applicant cannot be said to have clean hands owing to the existing outstanding debt. I am guided by the decision of Ringera J. (as he was then was) in the case of Showind Industries v Guardian Bank Limited & Another (2002) 1 EA 284 where the Learned Judge stated as follows: - “…….an injunction is granted very sparingly and only in exceptional circumstances such as where the Applicant’s case is very strong and straight forward. Moreover, as the remedy is an equitable one, it may be denied where the Applicant’s conduct does not meet the approval of Court of equity or his equity has been defeated by laches.” 1. They submitted that no material was placed on the case to show that the debt has been serviced. They relied on the case of [**Mediheal Group Limited & 2 others v Equity Bank Kenya Limited [2024] KEHC 16373 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16373/eng%402024-12-23), where R. Nyakundi J, stated as follows: 12. Furthermore, I find that the Applicant has demonstrated that he has clean hands, while coming to this court to seek equity. The Plaintiff is seeking the assistance of the Court to avoid the intended sale or auction of the property in question Cheptiret/cheplaskei Block 2(chepkigen)/251. In the case of [Francis J. K. Ichatha vs. Holding Finance Co. Ltd. Kenya HCCC No. 414 of 2004](https://new.kenyalaw.org/akn/ke/judgment/kehc/2011/4009) the court held that; “A Plaintiff should not be granted an injunction if he does not have clean hands, and no court of equity will aid a man to derive advantage from his own wrong, for the plaintiff seeks this court to protect him from the consequences of his own default. He who seeks equity must do equity. The plaintiff should not be protected or given advantage by virtue of his own refusal to make payments to the defendant/ respondent a debt which he expressly undertook to pay” 13.Similarly, in the case of Showind Industries vs. Guardian Bank Limited & Another [2002] 1 EA 284 the learned judge stated as follows;“An injunction is granted very sparingly and only in exceptional circumstances such as where the applicant’s case is very strong and straight forward. Moreover, as the remedy is an equitable one, it may be denied where the applicant’s conduct does not meet the approval of court of equity or his equity has been defeated by laches” 1. The applicant filed submissions dated 11.03.2026 seeking that the application be allowed and the applicant pays Ksh. 1,000,000/= towards school term. Never mind that the applicant had prayed for a payment of Ksh. 1,500,000/= per term. They submitted that the applicant has met a threshold. They relied on the case of [**John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] KEHC 6789 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/6789/eng%402015-01-22)**,** where J stated as follows: [23] I will first state the legal dimensions I shall apply here. Like any other limb of law, the law on injunctive relief has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before. The fundamental principle, therefore, in applying the traditional the traditional and accepted principles set out in the case of Giella vs. Cassman Brown for the grant of injunctive relief, is that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong”. See the decisions of Ojwang Ag. J (as he then was) in the case of **Suleiman vs Amboseli Resort Ltd (2004) eKLR 589**and Justice Hoffman in the English case of**Films Rover International (1986) 3 All ER 772**on the above proposition. Another superb rendition is an a work of Mabeya J in the case of **Jan Bolden Nielsen vs. Herman Phillipus Steyn alias Hermannus Phillipus Steyn & 2 Others (2012) eKLR**where the learned judge stated that:- **‘I believe that in dealing with an application for an interlocutory injunction, the court is not necessarily bound to the three principles set out in the Giella vs Cassman Brown case. The court may look at the circumstances of the case generally and the overriding objective of the law. In Suleiman vs. Amboseli Resort Ltd (2004) eKLR 589 Ojwang Ag. J (as he then was) at page 607 delivered himself thus:-** **‘ ...counsel for the defendant urged that the shape of the law governing the grant of injunctive relief was long ago in Giella vs Cassman Brown, in 1973 cast in stone and no new element may be added to that position. I am not, with respect, in agreement with counsel in that point, for the law has always kept growing to greater levels of refinement, as it expands to cover new situations not exactly foreseen before. Justice Hoffman in the English case of Films Rover International made this point regarding the grant of injunctive relief (1986) 3 All ER 772 at page 780-781:- “ A fundamental principle is that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong”….”** **Traditionally, on the basis of the well accepted principles set out by the court of Appeal in Giella vs Cassman Brown the court has had to consider the following questions before granting injunctive relief.** **i) Is there a prima facie case….** **ii) Does the applicant stand to suffer irreparable harm…** **iii) On which side does the balance of convenience lie? Even as those must remain the basis tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The Court in responding to prayers for interlocutory injunctive relief should always opt for the lower rather than the higher risk of injustice……** 1. The applicants submitted that they have an arguable case. Reliance was placed on the case of **Mrao [Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2003/175/eng%402003-03-07)**. They averred that the plaintiff is undergoing financial issues due to the harsh economic times. 2. They stated that the cornerstone of the application is substantial loss. Reliance was placed on the decision of the the High Court of Uganda in **Tropical Commodities Suppliers Ltd & Ors v International Credit BankLtd (In Liquidation) (Miscellaneous Application-2003/379) [2003] UGHC 80**, which described substantial loss as: *“…Substantial loss does not represent any particular amount or size. It cannot be quantified by any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value, as distinguished from a loss without value or a loss that is merely nominal.”* 1. It was posited that the property is prime and would cause substantial loss. It was their submissions that in **Nguruman Limited vs. Jan Bonde Nielsen & 2 others [2014] eKLR** the court emphasized that property in danger of waste should be protected. They also submitted that the balance of convenience tilts in their favour. Reliance was placed on the case of [**Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2424/eng%402018-06-29)**,** where the court stated as follows: The court should issue an injunction where the *balance of convenience* is in favor of the plaintiff and not where the balance is in favor of the opposite party. The meaning of *balance of convenience* in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the *balance of inconvenience* and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it. 1. This was also buttressed by the case of [**Thathy v Middle East Bank (K) Ltd & another [2002] KEHC 1159 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2002/1159/eng%402002-04-30)**,**where A.G Ringera J, as he then was stated as follows: As regards the balance of convenience, I think the same tilts infavour of refusing the injunction. The plaintiff is not repaying his mortgage debt. From the statement of account a lot of what is outstanding is interest. That interest continues to accumulate. At the present tempo the charge debt will be more than the value of the security quite soon. In those circumstances, neither the debtor nor the borrower stands to gain anything by maintenance of the status quo. The Bank would lose because its security will in effect be no security at all if on sale it cannot realize the debt. And the plaintiff will lose because if the property is ultimately sold, he will not benefit from his investment. A sale of the security now appears to me to be in the best interest of both parties. 1. They submitted that payment of installments mitigates against any prejudice the applicant may suffer. Analysis 1. The applicants sought injunction reliefs. The applicants are obligated to meet the requirements for injunctions as set out in the locus classicus case of **Giella vs. Cassman Brown & Co. Ltd [1973] EA 358** as follows: “In an interlocutory injunction application, the applicant has to satisfy *the triple requirements to;* *(a) Establish his case only at a prima facie level,* *(b) Demonstrate irreparable injury if a temporary injunction is not granted, and* *(c) Allay any doubts as to (b) by showing that the balance of convenience is in his favour.* 1. The principles guiding the grant of interlocutory injunction are now well settled. Those principles were set out in **East African Industries vs. Trufoods [1972] EA 420** and **Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR.** In the latter case, the Court of Appeal opined that: *“…these are the three pillars on which rest 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… 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 are 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.”* 1. It is not clear what the Applicants posit as the Respondents’ sins. The injunction sought by the Plaintiff was in the nature of amendments of the terms of loan repayment between the parties. As I was reflecting on the ruling, I was trying to find who the offeror and offeree were. The applicant has placed before the court what they call a good deal. They want the court to accept it. However, the court is supposed to be an officious bystander. It can neither accept nor reject an offer. It may even find that the deal offered is good but has no capacity to accept on behalf of the other side. The contract is a solemn agreement between parties. It is only them who can amend, change or repudiate it. 1. In the case of [**National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2001/362/eng%402001-06-08) [Tunoi, Shah & Keiwua JJ A] stated as follows: - A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge. As was stated by Shah JA in the case of Fina Bank Limited vs Spares & Industries Limited (Civil Appeal No 51 of 2000) (unreported): “It is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape from a bad bargain. 1. The remedies exercised are part of the remedies offered by the applicant and accepted. The loan was taken to improve the school. It was clear in the minds of the parties that this day, may one day arrive. The day has arrived. There may be serious losses. However, they were contemplated. The court cannot move an inch in absence of breach on part of the respondents. While dealing with this issue, in the case of [**Fina Bank Limited V Spares & Industries Limited** [2000] [2000] KECA 117 (KLR](https://new.kenyalaw.org/akn/ke/judgment/keca/2000/292/eng%402000-11-10), the Court of Appeal [Kwach, Bosire & O'Kubasu JJ.A] stated as follows: **We appreciate that the appointment of receivers may not necessarily improve the respondent's financial position. It is, however, one of the contractual remedies available to the applicant for the respondent's default in loan repayment and the applicant should not be hindered from exercising it without good cause. It is owed a substantial amount of money and it is only proper that it takes such steps within its rights under its contract with the respondent to mitigate its loss in the event its intended appeal eventually succeeds. We note that the applicant being a bank there is, prima facie, no danger of it failing to compensate the respondent if at the end of the day it fails to succeed in its intended appeal.** 1. The courts have defined what a prima facie case is in the case of[**Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2003/175/eng%402003-03-07)**.** The Court of Appeal [RO Kwach, SEO Bosire & EO O'Kubasu, JJA], noted as follows: 4. 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. The court has not found a prima facie case to have been established. The orders sought are incapable of being granted in absence of fault. In the absence of fault, and prima facie case, it is unnecessary to proceed with the other two limbs. The application is consequently dismissed. 2. This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows: **(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.** **(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.** 1. Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of [**Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/158/eng%402018-10-18)had this to say: It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 1. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of [**Rai & 3 others v Rai & 4 others** [2014] KESC 31 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng%402014-03-04), as follows: 18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation 22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 1. The respondents are entitled to costs of the application. Determination 1. In the upshot, I make the following orders: 2. The Notice of Motion dated 13.01.2026 is dismissed. 3. The 1st Respondent shall have costs. 4. Directions on the main suit on 22.10.2026. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **26th** day of **May, 2026**. Ruling delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of:-** No appearance for parties Court Assistant – Martin