https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9575

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. 132 OF 2025** **SUMAC MICROFINANCE ……………………………………APPELLANT** **VERSUS** **STEPHEN NJOROGE …………………………............. 1ST RESPONDENT** **DIANA GATHONI ……………………….……..……….. 2ND RESPONDENT** **JOSRICK MERCHANTS AUCTIONEERS …..……….. 3RD RESPONDENT** **LAND REGISTRAR ……………………………………… 4TH RESPONDENT** **(***Being an appeal from the entire ruling and consequential orders by Hon. V. Ochanda (PM) delivered on 7th May 2025 in Machakos Chief Magistrate in CMCC No. E447 of 2024)* **JUDGMENT** 1. This is an interlocutory judgment against the ruling of the court below, by which the 1st Respondent was granted a temporary injunction to restrain the Appellant from disposing the property LR Mavoko Town Block 3/6618 pending the hearing and determination of this suit. The said temporary injunction stopped the appellant from exercising what it believes is its legally valid statutory powers of sale. 2. However, the 1st respondent claimed that the property was matrimonial property and that his consent had not been obtained before it was charged to the Appellant by his estranged wife (2nd respondent in this appeal). 3. In this appeal, the appellant avers that the 1st Respondent herein, acted in cahoots with the 2nd Respondent, in order to frustrate its legal right to redeem its security; that there was no proof that the two were not married and that there was also no proof that the subject property was matrimonial property as would have warranted the appellant to obtain his consent. The Appellant also argues that in any event at the time of charging the property, the 2nd Respondent had not indicated that she was not married and that therefore she required no spousal consent. 4. This appeal was canvassed by way of written submissions. I see no need to reproduce the same here. Suffice it to state that I have carefully considered these submissions the cases cited, the impugned ruling and the law. This being an interlocutory appeal the principles that should guide the court are as were laid down in the case of **Mrao Ltd – VS – First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) [2003] KECA 175 (KCR) (7 March, 2003) (Judgment)** where the Court of Appeal held: 1. **“The power of a court in an application for an interlocutory injunction was discretionary.** 2. **The court of appeal may only interfere with the exercise of court’s judicial discretion if satisfied:** 1. **“The judge misdirected himself on law; or** 2. **That he misapprehended the facts; or** 3. **That he took account of considerations of which he should not have taken accounts; or** 4. **That he failed to take into account of which he should have taken account; or** 5. **That his decision albeit, a discretionary one, was plainly wrong.”** 5. From the onset it is important to note that the case in which the temporary injunction was granted was not between the bank and the chargee but a suit filed by the alleged spouse of the chargee in an endeavour to protect from sale what he considers to be matrimonial property in which he allegedly has a stake. The learned magistrate, after considering the case before her, applied the balance of convenience and granted the restraining orders. She was unable to determine whether the 1st Respondent had established a prima facie case and whether irreparable loss would occur if the orders were granted. 6. Applying the principles in the **Mrao case (Supra)** but also cautioning myself of the need not to make any determination on the merits of the case below, I do find that the learned magistrate did not misdirect herself on the law, neither did she take into account or fail to take into account considerations of which she should have. The issue of whether or not the property in issue is matrimonial property, whether the 1st Respondent is a spouse of the 2nd Respondent and whether his consent should have been obtained before the charge, are the facts in issue in the case in the court below. Those issues can only be determined once the case is heard and the parties present their evidence. Just as the Appellant herein accuses the 1st Respondent of colluding with the 2nd Respondent is the same way the 1st Respondent alleges the Appellant and the 2nd Respondent of colluding to deprive him of the property. At this stage it is one party’s word against the others and in my view the learned magistrate was correct in applying the balance of convenience. This is more especially because interest on the mortgage is still accruing and in the end if it be found that the respondents were in cahoots to frustrate the sale, the appellants shall still be at liberty to issue a fresh statutory notice and put up the property for sale again. 7. The upshot is that this appeal is not merited. It is dismissed but with an order that the costs thereof shall abide the judgment of the court below. 8. The lower court file shall be returned to the court below, forthwith, unless there is an appeal to the Court of Appeal, so that the hearing can continue. **Judgment signed, dated and delivered virtually by way of Microsoft Teams on this 25th Day of June, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Mr. Muya for the Appellant Mr. Kahama for Respondent Court Assistant – Catherine