https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9019

Salim v Mwamboga & another (Civil Case E020 of 2025) [2026] KEHC 9019 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9019 (KLR) Republic of Kenya In the High Court at Mombasa Civil Case E020 of 2025 J Ngaah, J June 26, 2026 Between Samawati Ali Salim Plaintiff and Bakari Ali Mwamboga 1st Defendant Satnbic Bank Ltd 2nd Defendant Ruling 1.The plaintiff’s application is a motion dated 21 February 2025 and is expressed to be filed under Section 90 Land Act No 6 of 2012 Section 63 (e), 1A, 1B and 3A of the Civil Procedure Act, Order 40, Order 51 Rules 1 and 4 of the Civil Procedure Rules 2010. The applicant seeks the following orders:“1)That this Honourable Court do certify this application as urgent and dispense with service at first instance and hear it ex parte.2)That this Honourable court be pleased to issue a temporary injunction restraining the Defendants or any person purporting to act on his behalf, servants, workmen, licensees or agents including Westminster Commercial Auctioneers from howsoever from selling, dealing, interfering, alienating or disposing of all that parcel of land known as Title LR NO’s MN /1/8026, LR NO’s MN /1/8028 and LR NO’s MN /1/8029 pending the hearing and determination of this application inter-partes.3)That this Honourable court be pleased to issue a temporary injunction restraining the Defendants or any person purporting to act on his behalf, servants, workmen, licensees or agents including Keysian Auctioneers, from selling, dealing, interfering, alienating or disposing of all that parcel of land known as Title Westminster Commercial Auctioneers from howsoever from selling, dealing, interfering, alienating or disposing of all that parcel of land known as Title LR NO’s MN /1/8026, LR NO’s MN /1/8028 and LR NO’s MN /1/8029 pending the hearing and determination of this suit.” 2.The application is supported by the affidavit of the applicant who has sworn that the 2nd Defendant has, through Westminster Commercial Auctioneers, served her with a notice of intention to advertise LR NO’s MN /1/8026, LR NO’s MN /1/8028 and LR NO’s MN /1/8029 (hereafter “the suit property”) sale of matrimonial properties belonging to the Plaintiff to an exercise to held on 25 February 2025 in exercise of statutory powers of sale for a cumulative outstanding balance of Eur 360,600.79 which had been charged for various loan facilities offered to the 1st Defendant and Amina Mwamboga. 3.The properties up for public auction include all that property known as Title No LR NO’s MN /1/8026, LR NO’s MN /1/8028 and LR NO’s MN /1/8029 in the name of the 1st Defendant And Amina Mwamboga. 4.The applicant has sworn further that he was married to the 1st Defendant on 4 January 2016 and no spousal consent was sought by the 2nd Defendant before awarding the loan with regard to the Plaintiff. The applicant has sworn that her marriage to the 1st defendant still subsists and that she currently lives on the property which straddles Title No LR NO’s MN /1/8026, LR NO’s MN /1/8028 and LR NO’s MN /1/8029 in the name of the 1st defendant and Amina Mwamboga. 5.It is also sworn that the right to sell has not crystallized because the statutory notice under Section 90 of the Land Act being the three months’ notice, has never been issued to the Plaintiff and/or Chargor or the principal debtor. The applicant has witnessed strange individuals visiting the property and informing her that the property is up for auction. 6.The applicant is also aware that Amina Mwamboga who was presented as the 1st defendant’s wife is not a resident in Kenya. The applicant has sworn that she is ready to service the loan by way of monthly instalments of Kshs 100,000/=. 7.The 2nd respondent filed grounds of objection and a replying affidavit opposing the application. The 2nd respondent objects to the application on grounds that the application is unmerited and bad in law in so far as it seeks a temporary injunction against the Defendants without satisfying the court that the applicant has met the criteria for such an injunction set out in Order 40 of the Civil Procedure Rules, 2010; that the application is also an abuse of the court process in so far as it seeks to bar the 2nd Defendant from exercising its legal rights under Section 96 of the Land Act, 2012 without demonstrating to the court that there exist any reasons, plausible or otherwise, to warrant the grant of any such orders; that the application is an abuse of the court process in so far as it seeks to have this Honourable Court aid the Plaintiff and the 1st Defendant to run away from meeting their obligations of repaying the outstanding debt owed to the 2nd Defendant; and, that the Plaintiff's application is ill-advised and an abuse of the court process in so far as it doesn't disclose any reasonable cause of action to warrant grant of any of the orders sought as envisaged under Section 68 of the Land Registration Act. The 2nd respondent pleads that based on these grounds the application is therefore a non-starter and it ought to be struck out with costs. 8.The 2nd respondent’s replying affidavit has been sworn by Angela Njeri who has introduced herself as the Manager-Recoveries and Rehabilitation for the 2nd respondent. 9.Njeri has sworn that according to Bank's records, the 2nd respondent granted the 1st Defendant a loan facility/financial accommodation in the sum of EURO 154,867.00 (Euros One Hundred and Fifty-Four Thousand, Eight Hundred and Sixty-Seven). The offer of the loan was at the 1st respondent’s request. 10.The loan facility was secured by Legal Charges registered over three parcels of land: A Legal Charge was registered over land parcel numbers LR. No. 8028/1/M.N and LR. No. 8029/1/M.N which are in the names of the 1st Defendant (Chargor/Borrower). Another separate Legal Charge was registered over land parcel LR. No. 8026/1/M.N which is the names of Bakari Ali Mwamboga (the 1st Defendant herein) and the other registered owners being Omar Mwamboga, Fauzia Mwamboga, Amina Bakari Ali Mwamboga, Abubakar Abdulmalik and Yasir Abdulmalik. The three parcels of land were charged in favour of the 2nd respondent to secure the repayment of the loan facility. 11.From the records held by the Bank and particularly the two Legal Charge documents dated 29 August 2017 and registered on 1st September 2017 at pages 20 and 18 respectively, the 2nd respondent obtained spousal consent from Amina Bakari Ali Mwamboga, who swore on oath to be the spouse of the 1st respondent. 12.It has also been sworn that the Charger is under a duty to disclose his marital status as well as the details of his spouse to the 2ⁿᵈ respondent. The 2nd respondent relied on the information availed by the 1st respondent, that Amina Bakari Ali Mwamboga is his spouse, and proceeded to register the two Legal Charge documents after obtaining the requisite spousal consents as required by the law. The 2nd respondent, therefore, recognized spousal rights over the suit properties, having been owned by both the 1st respondent and his spouse, Amina Ali Mwamboga, who presented themselves to the Bank as husband and wife. 13.Spousal consent aside, prior to the loan approval, the 2nd respondent instructed M/S Tysons Limited, who conducted a valuation of the three suit properties and prepared a Valuation Report dated 03rd March 2017. The Report found that:a)LR. No. 8026/1/M.N comprises a three-storey residential building, which had been leased out for a term of 15 years from 01st January 2013 to Alfred Makhulu lsaya, at a monthly rent of Kshs.72,950.00.b)LR. No. 8028/1/M.N and LR. No. 8029/1/M.N were found to be vacant. 14.It has been denied that the suit properties are matrimonial properties and that the applicant currently resides in one of the properties. According to Njeri,the Valuation Report was clear that only LR. No. 8026/1/M.N had a three-store building that was leased out for rent for a period of fifteen years, while LR. No 8028/1/M.N and LR. No. 8029/1/M.N were vacant. 15.According to the letter of offer and acceptance, it was mutually agreed between the 1st and 2nd respondent that the loan was to be repaid by the 1st Defendant in 120 (one hundred and twenty) monthly instalments of EURO 1,870.24 each, from the date of drawdown. Further, the loan facility was attracting an agreed interest rate of 10% (per cent) per annum, to be computed on the daily balances and debited monthly by way of compound interest, but subject to an additional Default Interest rate of 10% (ten Per cent) per annum, over and above the normal applicable interest rate, in the event that the 1st respondent would default in the repayments of the agreed monthly instalments. In addition, it was mutually agreed between the parties that the 2ⁿᵈ respondent would be at liberty to vary the interest rates, at its sole discretion depending on the prevailing market forces. 16.It is further sworn on behalf of the 2nd respondent that from the records held by the 2nd respondent, the 1st respondent made some repayments at the beginning, but thereafter defaulted in the repayment of the loan. The 1st respondent made occasional, irregular repayments and thereafter remained in a state of perennial default, despite several reminders and indulgence extended by the 2nd Defendant Bank to make good the said payments. As at 7 March 2025, the loan account no. AAl7250NB2ZY had accrued arrears of EURO 306,230.72 (over 87 months in arrears), and the total outstanding balance due on the loan account was EURO 360,713.27. 17.This state of perennial default prompted the 2nd respondent to exercise its statutory power of sale, following all due legal process required by law, to recover the debt. The 2nd respondent issued the two mandatory statutory notices contemplated under Sections 90(1), (2), and (3)(e) and Section 96(1), (2), and (3) of the Land Act 2012. 18.The 2nd respondent also instructed M/s Thaara Auctioneers, who equally complied with the legal requirement under Rule 15 of the Auctioneers' Rules 1997 and issued an appropriate 45-Day Redemption Notice/Notification of Sale dated 1 September 2020. 19.The 1st respondent had filed a separate suit against the 2ⁿᵈ respondent together with an application vide Mombasa High Court Commercial Case No. E015 Of 2024 Bakari Ali Hassan Vs Stanbic Bank & Garam Investment Auctioneers, seeking to stop the exercise of the Bank's statutory power of sale. The said application was dismissed in a ruling rendered by this Honourable Court on 24 July 2024 and, therefore, the 2nd respondent was at liberty to proceed with its statutory power of sale. 20.Njeri has also sworn that the 2nd respondent has previously made several attempts to sell the suit properties but has been unsuccessful. The latest attempt was the public auction scheduled for 10 February 2025, but did not take off because the applicant moved to this Honourable Court to stop it. 21.It is the 2nd respondent’s position that the 2nd respondent’s statutory power for sale having arisen, it would be inequitable for the applicant, who is a stranger to the various agreements between the 1st respondent and the 2nd respondent to now allege such substantial and irreparable loss in the event the sale proceeds, yet the Bank obtained the necessary spousal consents before charging the properties. 22.Accordingly, it is in the interest of all parties to this suit to allow the sale of the suit properties to proceed and be concluded, because it would enable the 2nd Defendant Bank to recover the outstanding debt, or a substantial portion of it, at this moment when the aggregate debt stands at EURO 360,713.27. If the sale does not proceed, the debt will continue to accumulate and the interest will rise, and exceed the value of the suit properties. 23.The 2nd respondent is said to be “a very stable financial institution” with sufficient capacity to compensate the Plaintiff, in the event that it is established at the trial of this suit, that it was not entitled to exercise its statutory power of sale. 24.The principles upon which an injunction pending the hearing and determination of a suit may be granted were set out in Giella V. Cassman Brown & Co. Ltd [1973] EA 358. The Court of Appeal revisited these principles in Nguruman Limited v Jan Bonde Nielsen & 2 others (2014) eKLR and in a way restated those principles and held as fllows:“Since those principles are already codified by authoritative pronouncements in the precedents they may be conveniently noted in brief 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)ally any doubts as to (b) by showing that the balance of convenience is in his favour. 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”. 25.The court explained that if an applicant for an injunction establishes a prima facie case, that, in itself, is not enough for the court to grant an interlocutory injunction. Besides establishing a prima facie case, the court must go further and satisfy itself that if the injunction is declined, the injury the applicant for injunction will suffer, will be irreparable. And by this it is meant that if damages recoverable in law is an adequate remedy and that, in any event, the respondent is disposed to pay those damages, no interlocutory order of injunction should be granted, irrespective of how weighty the applicant’s claim may appear to be. 26.According to the learned judges of Appeal, if a prima facie case is not established, then the conditions of irreparable injury and balance of convenience need not be considered. In judges' words "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”. 27.And as to what a prima facie case entails, the Court adopted the definition given to this phrase in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others (2003) KLR 125 where a prima facie case was defined in the following terms:“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.” 28.The learned judges of appeal explained this to mean that the party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected. This right must be directly threatened by an act sought to be restrained; the invasion of the right has to be material and substantive; and, there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. 29.The court reiterated that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and it must not examine the merits of the case closely. All that the court is to consider is that, on the face of it, the person applying for an injunction has a right which has been or is threatened with violation. The position of the parties is not to be proved in such a manner as to give a final decision on disputed facts. In particular, an applicant need not establish title but it is enough if he can demonstrate that he has a fair and bona fide question to raise as to the existence of the right which he alleges. 30.The court further explained that, the standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed. 31.As to the condition of irreparable damage, the court held that it is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. The court noted further:“Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.” 32.On the question of balance of convenience, the court held that:“It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.” 33.In Thathy v Middle East Bank (K) Ltd & another [2002] KEHC 1159 (KLR), Ringera, J. (as he then was) held the view that the “doubt” to which reference has been made is attributed to whether a prima facie case exists and not to whether damages are an adequate remedy as the learned judges held in Nguruman Limited v Jan Bonde Nielsen & 2 others (2014) eKLR. The learned judge held as follows:“I have now to weigh the above submissions in the light of the settled principles for the grant of interlocutory injunctive relief. Those principles are as follows. First, the applicant must show a prima facie case with a probability of success at the trial. If the court is in doubt about the existence or otherwise of a prima facie case it should decide the application on a balance of convenience. Secondly, a court will not normally grant an interlocutory injunction unless it can be shown that the applicant is likely to suffer an injury which cannot adequately be compensated in damages: see Giella v Cassman Brown & Co Ltd [1973] EA 358. (Emphasis added). 34.Besides the conditions of prima facie case and that of irreparable damage, the learned judge also added another angle to the conditions that an applicant must meet before an order for injunction can be made in his favour. The learned judge held:Those two (i.e. the condition for prima facie case and irreparable damage) are, if I may so say, the necessary but not the sufficient conditions for grant of interlocutory injunctive relief. Of equal importance is this: an injunction is an equitable remedy and the court may decline to grant the same if it is shown that the applicant’s conduct pertinent to the subject matter of the suit does not meet the approval of a court of equity.”The applicants’ application from the foregoing legal perspective. 35.A material issue that has been brought to the fore is the validity of the security documents under which the charges over the suit properties were registered. This issue arises from the applicant’s allegation that she is the chargor’s wife yet her consent to charge the property was not obtained. Such consent is a requirement under section 79.(3) of the Land Act, cap. 280 which states as follows:79.(3)A charge of a matrimonial home, shall be valid only if any document or form used in applying for such a charge, or used to grant the charge, is executed by the chargor and any spouse of the chargor living in that matrimonial home, or there is evidence from the document that it has been assented to by all such persons. 36.The applicant has exhibited to the affidavit in support of her application a Muslim marriage certificate, issued under the Marriage Act No. 4 of 2014, showing that she got married to the charger on 24 January 2016. 37.The 2nd respondent has not categorically denied that the applicant is a spouse to the charger; however, its case that the person presented by the chargor as his spouse for purposes of complying with section 79. (3) of the Act was one Amina Bakari Mwamboga. To this end, Njeri has sworn that:“ 20.That I reiterate that the 2nd Defendant Bank relied on the information availed by the 1st Defendant, that Amina Bakari Ali Mwamboga is his spouse, and proceeded to register the two Legal Charge documents after obtaining the requisite spousal consents from the said spouse, as required by the law.” 38.Njeri has sworn that the 2nd respondent not only relied on the information given by the 1st respondent as to who his spouse was but the said spouse swore an affidavit to that effect. This is apparent from paragraph 5 of the affidavit where Njeri has deposed as follows:“ 5.That from the records held by the Bank and particularly the two Legal Charge documents dated 29th August 2017 and registered on 01st September 2017 at pages 20 and 18 respectively, it is clear that the 2nd Defendant Bank obtained spousal consent from Amina Bakari Ali Mwamboga, who swore on oath to be the spouse of the 1ˢᵗ Defendant herein (Charger/Borrower)…” 39.But what does the law say about proof of marriage? Section 59. (1) of the Marriage Act provides the answer to this question; it says as follows:59.(1)A marriage may be proven in Kenya by—(a)a certificate of marriage issued under this Act or any other written law;(b)a certified copy of a certificate of marriage issued under this Act or any other written law;(c)an entry in a register of marriages maintained under this Act or any other written law;(d)a certified copy of an entry in a register of marriages maintained under this Act or any other written law; or(e)an entry in a register of marriages maintained by the proper authority of the Khoja Shia, Ith’nasheri, Shia imam, Ismaili or Bohra communities, or a certified copy of such an entry.(2)Despite subsection (1), a marriage may be proven in Kenya if it was celebrated in a public place of worship but its registration was not required, by an entry in any register maintained at that public place of worship or a certified copy of such an entry. 40.What this provision of the law means is that a word of a mere mouth or bare affidavit sworn in support of a fact of marriage may not be sufficient proof of marriage in Kenya. To be more precise, proof of marriage other than through the legally recognised means is not sufficient proof. It follows that one of the material questions that this suit poses is whether, based on the material before court, the contract or contracts entered into between the 1st respondent and the 2nd respondent, in particular charges registered against the suit properties are valid and enforceable. At this interlocutory stage of the proceedings I cannot pretend to offer an answer to this question; suffice it to say, for purposes of determination of this application, this is a question on which a prima facie case would properly be predicated. In other words, because of this very question, the applicant’s case meets the threshold of a prima facie case. 41.I am minded that the 2nd respondent has denied that the suit properties are matrimonial properties but this denial appears to me to contradict the 2nd respondent’s own case that it was necessary that the chargor obtains the spousal consent. In paragraph 7 of the Njeri’s affidavit, Njeri is categorical that the 2nd respondent acknowledged the spousal rights over the suit property. In particular, it is sworn as follows:“ 7.That the 2nd Defendant Bank therefore recognized spousal rights over the suit properties, having been owned by both the 1st Defendant and his spouse, Amina Bakari Ali Mwamboga, who presented themselves to the Bank as husband and wife.” 42.As noted earlier in this ruling, under section the spousal consent would only be required under section 79(3) of the Land Act, a spousal consent to charge a property is only necessary when the property is a matrimonial property. It follows that the agreements between the 1st and 2nd respondents proceeded on the understanding that the properties were matrimonial properties. The only question is whether the person presented as the Chargor’s spouse as understood under section 79 (3) of the Land Act and the Marriage Act. 43.Turning to the question whether the applicant will suffer irreparable harm that cannot be adequately compensated by award of damages if the injunction is not granted, she has sworn thus:“That I hold the property sitting in the property as of sentimental value given we regard the same as our dear home with memories invested therein”. 44.The 2nd respondent, on the other hand, has exhibited valuation reports showing the market value, the forced sale value and the insurance of the three properties making a case that the injury the applicant the applicant is likely to suffer if the injunction is not granted is ascertainable. Ringera, J (as he then was) seemed to have adopted this position in Thathy v Middle East Bank (K) Ltd & another [2002] eKLR. 45.While addressing the issue whether the applicant had satisfied the condition that he would suffer irreparable damage in the event a residential house he had mortgaged was sold in exercise of the mortgagee’s exercise of its statutory power of sale, the learned judge held as follows:“The compessability or otherwise in damages as a condition for the grant of an interlocutory injunction is an old one which is firmly rooted in the history of an injunction as an equitable remedy. In the matter at hand, the property sought to be sold is a residential house which the plaintiff leases out for economic gain. Its value is easily ascertainable. It has been mortgaged to the bank with full knowledge that if the mortgage debt is not paid as covenanted in the contract, the same would be sold. In those circumstances, it does not lie in the mouth of the mortgagor to say that if he is in default, as he undoubtedly is, the sale of the security would result in irreparable harm to him. In my opinion, his loss is perfectly capable of being compensated in damages and it has not even been suggested by his advocate that the defendant Bank is incapable of so compensating him. The plaintiff does not therefore surmount this hurdle.” 46.Nevertheless, the learned judge agreed with the learned counsel for the applicant that where there is infraction in the notice or service thereof or where there is a breach of the Auctioneers Rules, the court can intervene and stop the sale. In this regard the learned judge held:“As regard the service of the notification of sale, I have already expressed the view that once the mortgagee opts to exercise the power of sale through a licensed auctioneer in a public auction, the Auctioneers Rules become relevant and applicable. Accordingly, a valid notification of sale should be served on the mortgagor.” 47.On whether the notice was properly served, the learned judge held as follows:“The second mode of service is attacked on more substantial ground, namely that the relationship of the Asian lady allegedly served with the notice with the plaintiff is not disclosed. Rule 15 (c) requires the notice to be served either on the registered owner of the property or an adult member of his family residing or working with him. In the instant matter, it is not clear whether or not the lady served was a member of the plaintiff’s family. She may or she may not be. Two conclusions may in my view be properly drawn from the above facts. One, the first mode of service is not recognised by the Auctioneers Rules, 1997. Two, on the auctioneer’s own affidavit, there is doubt whether or not the notification of sale was served on the plaintiff as required by rule 15 (c). Counsel for the bank argued that non-compliance with the Auctioneers Rules cannot derogate from an otherwise lawful exercise of a statutory power. The plaintiff’s advocate for his part drew a distinction between situations where a security has been realized in contravention of the Auctioneers Rules and situations where it is sought to restrain the exercise of the power of sale which is manifestly in violation of the Auctioneers Rules. I accept that distinction myself. It appears to stand to reason and to be in conformity with both the provisions of Section 26 of the Auctioneers Act and Section 69 B 1 (2) of the TPA to hold that anybody who suffers injury or loss as a result of the wrongful or improper exercise of the powers of an auctioneer or the power of sale generally has his remedy in damages only. However, it is a non sequitor to suggest that one who is about to be damnified by such an improper or irregular exercise of either the powers of an auctioneer or the general power of sale isn’t entitled to stop the intended injury on its tracks particularly where the intended breach is a serious one.” 48.Considering that the charge documents may probably be tainted with illegality, I would adopt the position taken by the learned judge that the applicant will be damnified by improper or irregular exercise of statutory power of sale. If the suit property is disposed of on the basis of what might as well turn out to be illegal contracts, there would be a case of unlawfully acquired property contrary to article 40 of the Constitution; according to this provision of the law, the right to own property does not extend to property that has been unlawfully acquired. 49.It follows that there is a case to stop the intended injury by way of grant of an injunction. I hereby allow the application in terms of prayer 3 of the motion. Costs will abide the outcome of the suit. It is so ordered. SIGNED, DATED AND DELIVERED ON 26 JUNE 2026 NGAAH JAIRUSJUDGE