https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12217

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION CORAM: F. MUGAMBI, J COMM CIVIL SUIT NO. E244/2026 BETWEEN DANIEL OCHIENG OKOTH ……………….... PLAINTIFF/APPLICANT VERSUS KCB BANK KENYA LTD …………….…….……. 1ST DEFENDANT/RESPONDENT JOSRICK MERCHANTS AUCTIONEERS ........ 2ND DEFENDANT/RESPONDENT DR. ABDI HASSAN AHMED ……………………. 3RD DEFENDANT/RESPONDENT CHIEF LAND REGISTRAR (NAIROBI) .............. 4TH DEFENDANT/RESPONDENT RULING Background and Introduction 1. For determination is the Notice of Motion application dated 22nd April 2026, filed by the Applicant under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Sections 89, 90, 96, 97, 99, 103 and 104 of the Land Act, 2012; Order 40 Rules 1, 2 and 4 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; and HCCOMM NO. E244 OF 2026 RULING Page 1 Article 159 of the Constitution. The application seeks injunctive orders restraining the Respondents, whether by themselves, their agents, servants or otherwise howsoever, from evicting the Applicant from, and from reselling, transferring, alienating, trespassing upon or otherwise dealing with, the landed property known as TITLE NO. NAIROBI/BLOCK/24/895, upon which the Applicant has erected HOUSE NO. 53, MIDLAND COURT ESTATE – SOUTH C (hereinafter "the suit property"), pending the hearing and determination of the suit. 2. The application is supported by the affidavit sworn by DANIEL OCHIENG OKOTH on 22nd April 2026. It was opposed through the replying affidavits of DR. ABDI HASSAN AHMED, the 3rd Respondent, sworn on 2nd May 2026 and DAVID MAIYO KIPLAGAT on behalf of the 1st and 2nd Respondents, sworn on 28th May 2026. In addition, each of the parties also filed their respective written submissions, which I have carefully considered. Analysis and Determination HCCOMM NO. E244 OF 2026 RULING Page 2 3. The main issue for determination is whether the Applicant has met the threshold for granting the injunction orders sought. To succeed, the Applicant must satisfy the conditions established in Giella V Cassman Brown & Co Ltd, . [1973] EA 358 These conditions require him to demonstrate a prima facie case with a probability of success, show that he would suffer irreparable harm that could not be adequately compensated by damages, and, if the court is in doubt, have the application determined on the balance of convenience. 4. These conditions are applied as distinct, sequential hurdles which the Applicant is expected to surmount sequentially. This means that if he fails to establish a prima facie case, there is no need to consider irreparable harm or the balance of convenience. See Nguruman Limited V Jan Bonde Nielsen & 2 Others, [2013] KECA 347 (KLR )). 5. As to what constitutes a prima facie case, the Court of Appeal in Mrao Ltd V First American HCCOMM NO. E244 OF 2026 RULING Page 3 Bank of Kenya Ltd & 2 Others, [2003] KECA 175 (KLR) explained as follows: “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”. [Emphasis added] 6. Turning to the dispute at hand, the Applicant, the registered proprietor of the suit property, deposes that in or about 2022 the 1st Respondent advanced a credit facility of Kshs. 17,600,000/- to Kitchen Mate Gas Supplies Limited (the borrower), secured by a charge over the suit property. 7. He avers that he was taken by surprise by an unsigned letter dated 31st October 2025 and an accompanying Notification of Sale, left at the suit HCCOMM NO. E244 OF 2026 RULING Page 4 property, as he was unaware of any default by the borrower and maintains that the borrower had at all times been meeting its obligations under the charge. He further contends that he was never served with the statutory notices required to enable him to rectify any default and exercise his right of redemption, and that the only redemption notice he received, which was a 45-day statutory Redemption Notice dated 10th April 2026, was served more than 2 months after the auction had already been conducted on 4th February 2026. He additionally disputes any knowledge of a newspaper advertisement of the auction. 8. The Applicant states that he subsequently received a further letter dated 18th April 2026 from the 2nd Respondent, notifying him that the suit property had been transferred into the name of the 3rd Respondent pursuant to the auction, and demanding that he vacate within 14 days. 9. He accuses the 1st and 2nd Respondents of undervaluing the suit property to defraud him, pointing to the Notification of Sale, which assessed the market and forced sale values at Kshs. HCCOMM NO. E244 OF 2026 RULING Page 5 20,000,000/- and Kshs. 15,000,000/- respectively. These figures he states, are lower than both the initial valuation of 27th June 2022 (Kshs. 22,000,000/- and Kshs. 16,500,000/-) and a current valuation dated 22nd April 2026 (Kshs. 30,000,000/- and Kshs. 22,500,000/-). 10. The 1st and 2nd Respondents confirm the facility and aver that the borrower and/or the Applicant, as chargor, defaulted in servicing the loan facility, thereby causing the loan account to fall into arrears, with the outstanding balance standing at Kshs. 32,994,195.12 as at 30th October 2025. They contend that, contrary to the Applicant's allegations, all requisite statutory notices were duly issued and served upon the Applicant and the borrower, namely: the 90-day statutory notice issued pursuant to Section 90 of the Land Act; the 40-day notice to sell under Section 96(2) of the Land Act; the 45-day redemption notice issued by the 2nd Respondent; and the notification of sale together with the advertisement of the scheduled public auction. HCCOMM NO. E244 OF 2026 RULING Page 6 11. The 1st Respondent further confirms that, prior to the intended sale, it caused a valuation of the suit property to be conducted in compliance with Section 97(2) of the Land Act, following which the 3rd Respondent emerged as the highest bidder and purchaser for value without notice. The Respondents contend that the transfer in favour of the 3rd Respondent has already been effected, and that the orders sought by the Applicant have consequently been overtaken by events. 12. By his replying affidavit, the 3rd Respondent corroborates the averments of the 1st and 2nd Respondents. He confirms having participated in the public auction of the suit property conducted on 4th February 2026 in good faith, and having emerged the highest bidder, whereupon he paid the requisite deposit and subsequently completed the purchase. He avers that, following the said purchase, he complied with the terms of sale and thereby acquired a lawful proprietary interest in the suit property, and that at all material times he had no notice whatsoever of any alleged irregularities, disputes or defects in the process leading to the sale. HCCOMM NO. E244 OF 2026 RULING Page 7 13. Against this background, I now turn to analyze the issues raised. On the question of service, the evidence on record does not support the Applicant's contention that he was not served with the requisite statutory notices. The 1st and 2nd Respondents have exhibited the statutory notices which were dispatched to the Applicant at the same address provided by him in the Charge instrument. The certificates of posting exhibited confirm that these notices were sent to the Applicant on 4th November 2025. While the Applicant disputes having been served via the WhatsApp number allegedly used by the Respondents, he does not deny having received service by registered post. I also take note that the Redemption Notice was transmitted to the Applicant by email on 7th November 2025, a fact borne out by the Affidavit of Service sworn on 10th November 2025. In light of the foregoing, I find that the Applicant's claim of improper or non- service cannot be sustained. 14. The advertisement appearing in the Daily Nation of 19th January 2026 corroborates the averment that HCCOMM NO. E244 OF 2026 RULING Page 8 the intended sale of the suit property was duly advertised, thereby disposing of the Applicant's assertion that he had no knowledge of any such advertisement. 15. As regards the sale itself, the Memorandum of Sale dated 4th February 2026 confirms that the 3rd Respondent purchased the suit property for Kshs. 15,000,000/-, with the deposit being paid at the auction and the balance being settled by RTGS. No evidence has been tendered to displace the presumption that the 3rd Respondent acquired the suit property as a bona fide purchaser for value. The property having changed hands at the fall of the hammer means that the Applicant’s equity of redemption has since been extinguished. 16. On the issue of alleged undervaluation, I am guided by the position that this is a matter properly falling for determination on the evidence at trial, and not one to be resolved at the interlocutory stage. Even were it to be established that the suit property was undervalued as alleged, this would not, without more, entitle the Applicant to the grant of an injunction. It is trite that a court HCCOMM NO. E244 OF 2026 RULING Page 9 will not restrain a sale merely on account of a borrower or chargor producing a higher counter- valuation than that relied upon by the chargee. See Olkasasi Limited v Equity Bank Limited, [2015] KEHC 5932 (KLR). This is because any loss occasioned to the Applicant by reason of the alleged undervalue is quantifiable and would sound in damages, a remedy which the Applicant has not demonstrated the 1st Respondent to be incapable of satisfying. 17. Having evaluated the evidence in totality, I find that the Applicant has failed to establish a prima facie case with a probability of success. His claim for an injunction therefore fails at this first hurdle, consistent with the dicta in Nguruman case [supra]. 18. Even if I were to consider the other conditions, I am not convinced that the Applicant would suffer irreparable harm. Any loss suffered can be adequately remedied by an award of damages. The Applicant has not provided evidence to suggest that the 1st Respondent is incapable of compensating such damages if awarded. Finally, HCCOMM NO. E244 OF 2026 RULING Page 10 the balance of convenience tilts in favor of disallowing the injunction rather than allowing it. Disposition 19. Accordingly, the application dated 22nd April 2026 is dismissed with costs. Any interim orders previously issued are hereby vacated. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31 ST DAY OF JULY 2026. F. MUGAMBI JUDGE Delivered in presence of: Mativo & Ondieki for plaintiff/applicant Ms Wafula for 3rd defendant/respondent Ms Wariara for 1st defendant/respondent Court Assistant: Lillian HCCOMM NO. E244 OF 2026 RULING Page 11