https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7999

Superdrive Safaris Ltd v Business Partners International Kenya (II) Ltd & another (Civil Suit E006 of 2026) [2026] KEHC 7999 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7999 (KLR) Republic of Kenya In the High Court at Machakos Civil Suit E006 of 2026 NIO Adagi, J May 28, 2026 IN THE MATTER OF: SECTION 97 OF THE LAND ACT. CAP 280 AND IN THE MATTER OF: THE AUCTIONEERS ACT AND ACTIONEERS RULES, 1997 AND IN THE MATTER OF: THE INTENDED SALE OF THE PROPERTY KNOWN AS KONZA SOUTH/KONZA BLOCK 5(KONZA) 11675 & 11676 KONZA Between Superdrive Safaris Limited Plaintiff and Business Partners International Kenya (II) Ltd 1st Defendant Kenya Shield Auctioneers 2nd Defendant Ruling Introduction: 1.The Plaintiff/ Applicant filed the Notice of Motion application dated 11/02/2026 filed under certificate of urgency which is supported by the supporting affidavit sworn by William Mutisya Mbaluto on behalf of the Plaintiff/Applicant herein on even date seeking orders: -a.Spentb.That pending the inter partes hearing and determination of this application, this Honourable Court be pleased to issue a temporary injunction restraining the Respondents, whether by themselves, their agents, servants or auctioneers, from advertising for sale, selling, disposing of, alienating or in any manner dealing with Land Parcels No. Konza South/Konza Block 5 (Konza) 11675 and Konza South/Konza Block 5 (Konza)11676.c.That pending the hearing and determination of the main suit, this Honourable Court be pleased to issue an order of injunction restraining the Respondents from interfering with the Applicant’s ownership, possession and quiet enjoyment of the suit properties.d.That this Honourable Court be pleased to stay the intended public auction scheduled for 13th February 2026 and grant the Applicant a period of four (4) months to sell the suit properties by private treaty for purposes of settling the outstanding loan amount and clearing liabilities owed to contractors and the 1st Respondent.e.That this Honourable Court be pleased to allow the Applicant to propose a structured repayment plan for settlement of the outstanding sums due to the 1st Respondent within such period as the Court shall deem just.f.That this Honourable Court be pleased to order that a current, independent and neutral valuation of the suit properties be conducted by a valuer mutually agreed upon by the parties or appointed by the Court prior to any sale.g.That the costs of this application be borne by the Respondents. 2.The application is premised on the following grounds:a.On 7th March 2022, the Applicant and the 1st Respondent entered into a loan agreement of Kenya Shillings Thirty-Five Million Shillings Only (Kshs.35,000,000/=). The amount was to be disbursed in three instalments of Kshs.15,000,000/= in April 2022, Kshs.10,000,000/= in June, 2022 and Kshs.10,000,000/= in August of 2022 and a further top up of Kshs.8,000,000/=.b.As per the Agreement the Applicant was to make the payment on 1st July 2023. The aforesaid amount was to be used to set up a Petrol Station. The Applicant issued work to a contractor who would work on the project, Metro Industries Services Limited on 6th June 2022 and a Certificate was issued to that effect dated 2nd June 2023.c.The Applicant duly serviced the loan for several months and, upon experiencing financial challenges, engaged the lender in good faith negotiations to suspend repayment pending completion of the petrol station.d.The Respondents have failed to procure a current valuation of the suit properties in compliance with the law, thereby exposing the Applicant to the real risk of sale at a gross undervalue.e.The Applicant has undertaken substantial developments on the suit properties, including construction works through engaged contractors, which investments stand to be irreversibly lost if the auction proceeds.f.A forced sale by public auction, without a current valuation, will occasion irreparable loss that cannot be adequately compensated by damages.g.The Applicant also risks exposure to further claims by unpaid contractors, which loss cannot be remedied post-sale.h.The Applicant has already engaged prospective purchasers and reasonably requires four (4) months to conclude a sale by private treaty and settle all outstanding liabilities.i.The Respondents shall suffer no prejudice if restrained temporarily, whereas the Applicant stands to suffer substantial and irreversible loss if the orders are denied.j.There is imminent danger that the properties belonging to the Applicant may be auctioned on 13th February 2026 by public auction and at a gross undervalue if the auction is not stayed and a temporary injunction issued.k.It is in the interest of justice that the Application be heard and determined and the orders sought herein are granted as a matter of urgency. 3.Upon considering the application, this Court although did not certify the application urgent, issued a temporary ex parte interim injunction pending inter-partes directions on the same. 4.In opposition to the application, the Respondents filed a replying affidavit sworn on 11/02/2026 by Jenipher Wanjiku Odek, the Portfolio Manager at the 1st Respondent’s Company. The Respondents also filed an application dated 12/02/2026 seeking to set aside the ex parte interim injunction stating that there was good and sufficient cause to set aside the ex parte interim injunction grated on 11/02/2026 until the said application is heard on merit. 5.In the Replying affidavit, the Respondents aver that from the outset, it should be noted that the Applicant expressly and unequivocally admits being indebted to the I st Respondent and in default of the said loan amount in paragraphs 3 and 5 of the Supporting Affidavit and in view of the foregoing, the present application seeks an injunction and/or stay against the I st Respondent, its agents, employees or servants to stop them from auctioning, selling, transferring and/or dealing in any way the properties known as Konza Southikonza Block 5(Konza) 11675 & 11676 Konza (hereinafter "the suit properties") to enable it sell the said property by private treaty. 6.That at all times material to this suit, the 2nd Respondent, Auctioneers, have been merely an Agent of the Ist Respondent for the purpose of facilitating exercise of its Statuary Power of Sale but are not privy to the Loan Agreement between the Applicant and the 1st Respondent, and therefore wrongly sued. 7.The Respondents further aver that the main grounds on which the Applicant rely on, constitute a gross distortion of dealings between the Applicant and the Ist Respondent and that it is intended to use this Honourable Court to rewrite the terms of the loan facility and/or delay and derail the realization of the Ist Respondent's securities. That the grounds stated in the Application and Supporting Affidavit are sham and lack any basis both in law and in fact and that the Orders being sought by the Applicant are untenable in the circumstances. 8.The Respondents state that by the letter of offer dated 17th March, 2022, the Applicant (hereinafter "the Borrower") was advanced a loan facility of Kshs.35,000,000.00. As security for the said facility the Applicant offered its properties identified as Konza South/Konza Block 5 (Konza) 11675 and Konza South/Konza Block 5 (Konza) 11676 to be charged in favour of the Ist Respondent. The securities were perfected by registration of a charge over the said properties pursuant to the Charge dated 7th June, 2022. 9.That subsequently, by way of a further letter of offer dated 17th January, 2023, the Borrower was advanced a loan facility of Kshs.12,610,000.00 in addition to the initial loan amount of Kshs.35,000,000.00, to make a total of Kshs.47,610,000.00. 10.As security for the above facility, the Applicant agreed to have the initial registered Charge dated 7th June, 2023 secure the further advanced loan facility amounts together with the other securities as provided in the letter of offer dated 17th March, 2022. 11.That in addition to the abovementioned securities, the Applicant offered its property known as Konza Southikonza Block (Konza) 11675 to be Further Charged in favour of the Ist Respondent for a further amount of Kshs.3,500,000.00. The security was perfected by registration of the Further Charge dated J 6th May, 2023 over the said property. In addition to the securities stated above, the Applicant's director executed a Personal Guarantee in favour of the Bank as security for the said loan facilities. 12.On the strength of the said letters of offer, the Registered Charge Instruments and the Personal Guarantees that the Applicant was advanced the facilities as stated in the said letters of offer however, despite the clear provisions of the Charge instruments and the letters of offer, the Applicant, defaulted and the unsatisfactory state of the account persisted and the total outstanding loan arrears stood at Kshs.44,238,159.00 as at 26th May, 2023, and which amount continued to accrue interest and which was demanded from the Applicant. 13.That given the foregoing situation, the Ist Respondent had no choice but to seek realization of the securities to safeguard its own interest as well as those of other depositors. The Respondent annexed copies of the Statutory Notices with their Certificates of Postage and Newspaper Advertisement respectively. 14.The Respondents aver that on the foregoing, the Applicant herein has previously filed two Miscellaneous Applications, before this Honourable Court, being HCCOMM MISC APP. No. E007 of 2026 and before the Magistrates Court at Machakos, being Machakos ELC MISC APP. No. E044 of 2025 obtained interim injunction orders, which scuttled the intended Auction at the time and thereafter unceremoniously withdrew the said Application. Following the withdrawal of Machakos ELC MISC APP. No. E044 of 2025, the Applicant approached the Respondent on or about 1 7th May, 2025 and requested it to suspend any subsequent sale of the charged securities on the basis that they were seeking a buyer and hence wanted to sell by private treaty and/or financier to refinance the facility. Despite being accommodated, the Applicant has not demonstrated any progress despite numerous promises and the loan facility still remains in default and in arras and as at 6th February 2026, the outstanding balance stands at Kshs.75,327,894.98 as per the Statements of Account, exclusive of accruing interest. 15.The foregoing state of affairs has continued to persist despite numerous requests and reminders to regularize the facilities which has constrained the Ist Respondent to seek to realize the securities to protect its interests and those of its shareholders. 16.The Ist Respondent firmly opposes the present Application and especially the prayer for an additional four (4) months to secure a buyer, as it is not justified and only calculated to frustrated, delay, derail the auction set for 13th February, 2026. 17.The Respondents argue that granting the injunction sought herein would not only be an affront to justice but would serve to frustrate the Respondents efforts to realise its security. Especially in light of the Applicants admitted blatant default since 31st May, 2023 and the total lack of willingness to service and/or settle the facility. 18.The Respondents contend that the Applicant has consequently not established any basis for injunction as required for the following reasons;a.There is no dispute as to indebtedness to the Ist Respondent arising from the breach and default of the facilities' terms and conditions.b.The Applicant has not demonstrated that it will repay the facilities/or has paid the outstanding debt upon demand, despite being given opportunity to do so by the Ist Respondent.c.The parties executed agreements as a result of which the Applicant benefitted, and the same Applicant now wishes to have the Ist Respondent restrained from exercising its statutory power of sale over suit properties.d.The loan amount continues to accrue interest to the detriment of the Ist Respondent and its depositors.e.The Applicants have come to court with unclean hands by peddling lies, falsehoods and mis-information and are undeserving of any equitable remedy. 19.The Respondents state further that the Ist Respondent was well within its right to sell the charged properties and it's only fair and just that the instant Application be dismissed forthwith. In the absence of repayment of the sums in arrears o an acceptable settlement schedule, the 1st Respondent is well within its rights to realize its security for the sums advanced through the sale of the suit property. That the present case is an ordinary one of a borrower's default. It is for repayment of monies disbursed on clear and acknowledged conditions and the Applicant is therefore not deserving of the Orders being sought. The Respondents pray that the Applicant’s application dated 11/02/2026 be dismissed, with costs. 20.The court directed that both the Plaintiff/Applicant’s application dated 11/02/2026 and the Defendants’ application dated 12/02/2026 be heard together through written submissions. 21.The Respondents state that their Notice of Motion application dated 12th February, 2026, which the Court had directed be heard concurrently with the Plaintiff’s application has been overtaken by events. The sole purpose of the said application was to discharge the ex parte interim orders issued on 11th February, 2026, which had the effect of stopping the auction scheduled for 12th February, 2026, the application is moot and the Respondents abandon the same. 22.The Respondents proceeded to submit only on the Plaintiffs application dated 11/02/2026 while the Applicant made submissions in opposition to the Respondent’s application dated 12/02/2026. 23.Those submissions replicate the summary above and I wish not to duplicate the same here. Analysis and Determination 24.The Respondents having abandoned their application dated 12/02/2026, I will proceed to determine the Plaintiff’s application dated 11/02/2026. The single issue I form for determination is whether the Applicant has satisfied the conditions for grant of injunction orders sought in its application. I have carefully considered the said Plaintiff’s application, the Replying affidavit thereto by the Respondents and the rival submissions by parties and the authorities cited. 25.The Applicant seeks an interlocutory injunction to restrain the Respondents, whether by themselves, their agents, servants or auctioneers, from advertising for sale, selling, disposing of, alienating or in any manner dealing with Land Parcels No. Konza South/Konza Block 5 (Konza) 11675 and Konza South/Konza Block 5 (Konza) 11676 pending the hearing and determination of the substantive suit. 26.There is no dispute as to the debt and default in payment of the same. In fact, the substratum of the Plaintiff/Applicant's entire suit is to seek time, 4 months to be precise, to enable it remedy the state of persistent default either by finding a buyer to buy the securities and/or a financier to take over the loan facilities and/or to have the I st Respondent compelled to restructure the facilities by way of agreeing on a payment plan. 27.The Application is brought under Order 40. Order 40 Rule 1 allows the Court to allow injunctions in cases where suit property is at risk. Order 40(1)(a) and (b) provides:“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;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." 28.The conditions for consideration in granting an injunction are well settled and the celebrated case of Giella vs Cassman Brown & Company Limited (1973) E A 358, where the court expressed itself on the condition’s that a party must satisfy for the court to grant an interlocutory injunction :-“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience." 29.These conditions for the award of injunctions were buttressed in American Cyanamid Co. vs Ethicom Limited (1975) AER 504, which was quoted with approval in Stanley Anyamba Ageyo & another v Musa Matu Riunga & 5 others [2022] eKLR, where three conditions were noted to be of great importance namely:i.There must be a serious/fair issue to be tried (Prima facie case),ii.Damages are not an adequate remedy,iii.The balance of convenience lies in favour of granting or refusing the application. 30.The Plaintiff/Applicant invited this Court to be pleased to stay the intended public auction which was scheduled for 13th February 2026 and grant the Applicant a period of four (4) months to sell the suit properties by private treaty for purposes of settling the outstanding loan amount and clearing liabilities owed to contractors and the 1st Respondent. The Applicant be allowed to propose a structured repayment plan for settlement of the outstanding sums due to the 1st Respondent within such period as the Court shall deem just. i) Whether the Plaintiff/Applicant has established a prima facie case with a probability of success? 31.The Plaintiff/Applicant is the absolute registered owner of Land Parcels No. Konza South/Konza Block 5 (Konza) 11675 and Konza South/Konza Block 5 (Konza) 11676. A legal Charge and Further Charge were registered over the said properties in favour of the 1st Defendant/Respondent to guarantee a loan facility which had been advanced to the Plaintiff/Applicant now standing at Kshs.75,327,894.98 as at 6th February 2026. 32.It was an agreed term that, in the event of default, the I st Defendant/Respondent was at liberty to exercise its statutory power of sale over the suit properties, the same having been offered as collateral, to recover the outstanding loan amount. 33.In any case, the Plaintiff/Applicant has expressly admitted in its pleadings, being indebted and in default of repayment of the loan facilities owed to the I st Defendant/Respondent and inthe circumstances, it cannot be argued that the Plaintiff/Applicant has a prima facie case. 34.In Mrao Ltd vs Ltd vs First American Bank of Kenya and 2 others, (2003) KLR 125 which was cited with approval in Moses C. Muhia Njoroge & 2 others vs Jane W Lesaloi and 5 others, (2014) eKLR, the Court of Appeal defined a prima facie case as:“A Prima facie case in a civil application includes but 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 there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later”. 35.The parties herein have no dispute as to whether the Plaintiff/Applicant herein was served with statutory notice in compliance with Sec 90 of the Land Act. There is also no dispute that notice to sell was served upon the Plaintiff/Applicant in accordance with Sec 96 (2) of the Land Act. The Applicant has not challenged the Respondents’ process of exercising their statutory power of sale. ii) Whether the Plaintiff will suffer irreparable injury/loss that cannot be compensated by an award of damages if the application for temporary injunction is not allowed? 36.The Plaintiff/Applicant submits that the existence of an alleged debt does not extinguish the its equitable right of redemption nor authorize unlawful, irregular or oppressive exercise of statutory power of sale. That the Defendants/Respondents have further alleged that they stand to suffer prejudice due to delay in the auction process. However, no prejudice incapable of compensation by damages has been demonstrated. 37.Conversely, should the properties be sold before hearing of the application, the Plaintiff/Applicant stands to suffer irreparable loss incapable of adequate compensation, particularly if the properties are transferred to third parties. That the Plaintiff/Applicant risks permanent deprivation of proprietary rights if the auction proceeds before the dispute is fully ventilated 38.The Applicant stated that it has already engaged prospective purchasers and reasonably requires four (4) months to conclude a sale by private treaty and settle all outstanding liabilities. However, this court has not been shown any proof of the Plaintiff’s alleged engagements with prospective purchasers on sale by private treaty. 39.If this court is to believe the Plaintiff/Applicant’s then the 4 months the Plaintiff/Applicant is seeking will lapse on 11th June, 2026 when the Plaintiff/Applicant is expected to have regularized or ready to settled the loan facilities herein. 40.On their part, the Respondents submit that the suit properties can easily be valued and their value ascertained and while the Applicant's alleged loss is self-inflicted, the same can easily be compensated in damages, needless to say the Ist Defendant/Respondent's is a financial institution well capable of doing so. 41.In Nguruman Limited vs. Jan Bonde Nielsen & 2 Others Civil Appeal No. 77 of 2012 the Court of Appeal, inter alia, made it clear that:“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." 42.In Wilstone Mdindi Mwawugunga v Kenya Women Microfinance Bank PLC [2022) eKLR, the Court stated as follows;“On the question whether the applicant is likely to suffer irreparable loss which cannot be compensated in monetary terms, one can ask the question whether the property was valued and then quantified in monetary terms. There is no dispute that the property has a known and ascertainable value which is capable of monetary compensation by the respondent which is a reputable institution. In case of any possible damage caused, the same is capable of monetary compensation. This position was upheld in the case of Andrew Muriuki Wanjohi vs Equity Building Society Ltd & 2 0thers (supra). For those reasons, that ground fails." 43.Guided and persuaded by the foregoing decisions, I find that the Applicant has not demonstrated that it stands to suffer loss incapable of being compensated by an award in damages if the injunctive reliefs sought are denied. The Applicant has also not indicated or demonstrated the Respondent's inability to compensate if the need arises. 44.I agree with the Respondents that the suit properties can easily be valued and their value ascertained and the same can easily be compensated in damages, needless to say the Ist Defendant/Respondent's is a financial institution well capable of doing so. iii) In whose favour does the balance of convenience lie? 45.In the present case, it is not in doubt that the loan amount continues to attract interest and the amount could easily outstrip the value of the properties. This means that if the 1st Respondent is restrained from exercising its statutory power of sale until the suit is determined, it may not be able to recover the outstanding loan amount and interest by the time the suit will be determined since the value of the properties cannot be guaranteed to be sufficient to cover the amount outstanding then. In that regard, I find the balance of convenience to tilt in favour of the I st Respondent which can pay the value of the properties if it loses the suit. See Stek Cosmetics Limited -v- Family Bank Limited & Another [2020] eKLR. 46.The High court in Paul Gitonga Wanjau vs. Gathuthis Tea Factory Company Ltd & 2 others (2016) eKLR, exposed the balance of convenience as follows:“Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies. " 47.In Chebii Kipkoech v Barnabas Tuitoek Bargoria & Anor (2019) eKLR where the court stated that:-“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 that 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 that which is likely to arise from granting it” 48.On the whole, the Applicant has failed to satisfy the principles established in the famous Giella vs Cassman Brown case for grant of an injunction and especially in light of the admitted default and receipt of Statutory Notices. Further, no basis has been laid to curtail the Respondents’ right of realize the security as per the terms of the loan agreement and the charges herein. 49.In the end, this court finds the Applicant’s application dated 11th February 2026 to be without merit and the same is dismiss in its entirety. 50.Costs to be in the cause. 51.Directions to be taken on the hearing of the main suit. 52.It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 28TH MAY 2026NOEL ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 28TH MAY 2026In the presence of :-