https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12392

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL CASE NO. E002 OF 2026** **UNAMI CONSTRUCTION COMPANY LTD………………..PLAINTIFF** **VERSUS** **EQUITY BANK KENYA LTD…………………………….1ST DEFENDANT** **KEYSIAN AUCTIONEERS………………………………2ND DEFENDANT** **RULING** 1. **THE PLAINTIFF’S NOTICE OF MOTION.** 2. Plaintiff’s notice of motion application dated 10th February, 2026 is expressed to be brought under *Section 1A, 1B, 3A* and *63(e)* of the *Civil Procedure Act, Order 40 Rule 1* and *4, Order 51 Rules 1, 4, 6* and *10(1)* of the *Civil Procedure Rules* and all enabling provisions of law and seeks the following orders: 3. **[Spent].** 4. **[Spent].** 5. **THAT pending hearing and determination of the instant suit this Honourable Court be pleased, in the first instant, to issue an order of temporary injunction restraining the Defendants/Respondents from selling and/or disposing by way of public auction and/or any other means the properties known as;** **- Kisumu/Kanyawegi/6558;** **Kisumu/Ojolla/2010;** **Kisumu/Ojolla/2014;** **Kisumu/Kanyawegi/6602; and** **Kisumu/Kanyawegi/5805.** 1. **THAT the costs of this Application be awarded to the Plaintiff/Applicant against the Defendant/Respondent, together with interest thereon.** 2. The grounds upon which the application is premised are that the Plaintiff was advanced a loan facility by the 1st Defendant, which was secured by charges over land parcels L.R. Nos. Kisumu/Kanyawegi/6558, Kisumu/Ojolla/2010, Kisumu/Ojolla/2014, Kisumu/Kanyawegi/6602 and Kisumu/Kanyawegi/5805. 3. The Plaintiff contends that there exists a *bona fide* dispute regarding the accuracy, legality and computation of the amount allegedly outstanding, and avers that despite demand, the 1st Defendant has failed or refused to provide a true, accurate and up-to-date statement of account or reconcile the loan account. 4. The Plaintiff further contends that notwithstanding the existence of the dispute, the 1st Defendant instructed the 2nd Defendant to advertise and conduct a public auction of the charged properties scheduled for 17th February, 2026 without affording the Plaintiff a genuine opportunity to redeem the loan. It is asserted that the intended sale is premature, unlawful and irregular, having been commenced before the true indebtedness has been ascertained, contrary to the principles of fairness and equity. 5. The Applicant also avers that the intended exercise of the statutory power of sale contravenes *Section 97* of the *Land Act,* which obliges a chargee to obtain the best price reasonably obtainable at the time of sale upon conducting a current forced-sale valuation by a qualified valuer. 6. It is alleged that the valuations relied upon by the Defendants are outdated, grossly inadequate and significantly lower than the pre-charge valuations undertaken in 2023, notwithstanding that land is generally an appreciating asset, thereby exposing the suit properties to sale at a gross undervalue. According to the Applicant, such undervaluation gives rise to the statutory presumption of a breach of the chargee’s duty of care under *Section 97(3)* of the *Land Act.* 7. Lastly, the Applicant contends that unless the intended auction is restrained, the Defendants’ actions will unjustly defeat the Plaintiff’s equity of redemption, unjustly enrich the Defendants or third parties, and occasion irreparable loss through the permanent deprivation of the suit properties and proprietary rights, which loss cannot be adequately compensated by an award of damages. 8. It is further asserted that the balance of convenience favours the preservation of the *status quo* because the debt, if any, remains secured, the Defendants will suffer no prejudice if the sale is deferred, whereas the Plaintiff stands to suffer irreversible prejudice should the auction proceed. The Applicant therefore maintains that the application raises serious and triable issues warranting the grant of the orders sought pending the hearing and determination of the suit. 9. **THE SUPPORTING AFFIDAVIT.** 10. The application is supported by the affidavit of **Charles Owino Osewe** sworn on 10th February, 2026 in which the said deponent contends that he is a director of the Plaintiff and is duly authorised to swear the affidavit on its behalf. 11. He depones that on or about 1st July, 2020, the Plaintiff obtained loan facilities from the 1st Defendant in the aggregate principal sum of Ksh.27,000,000/-, which were secured by legal charges over L.R. Nos. Kisumu/Kanyawegi/6558, Kisumu/Ojolla/2010, Kisumu/Ojolla/2014, Kisumu/Kanyawegi/6602 and Kisumu/Kanyawegi/5805. 12. The deponent avers that the loan agreements provided for interest at 17% per annum and default interest at the rate of 3% per month on overdue instalments. He states that the Plaintiff serviced the loans regularly until November, 2025, when it encountered temporary cash-flow challenges. According to him, upon becoming aware of the arrears, the Plaintiff sought a detailed statement of account from the 1st Defendant with a view to reconciling the accounts and settling any legitimate outstanding amount. 13. He further depones that despite the Plaintiff’s efforts to regularize the accounts, the 1st Defendant issued a demand and statutory notice alleging that the Plaintiff was indebted in the sum of Ksh.27,803,628.73/- as at 17th January, 2026 without providing any reconciliation or computation of the amount claimed. 14. He states that the Plaintiff consequently engaged an independent professional auditor whose forensic audit allegedly revealed material errors, inconsistencies, unexplained charges, excessive interest and premature imposition of penalty interest, leading to the conclusion that the amount demanded by the 1st Defendant was erroneous and exaggerated. 15. The deponent avers that notwithstanding the Plaintiff'’s objections and the alleged discrepancies disclosed by the audit, the 1st Defendant instructed the 2nd Defendant to proceed with the exercise of its statutory power of sale and advertised the charged properties for public auction on 17th February, 2026. 16. He maintains that the intended sale is unlawful, premature and undertaken in bad faith because it is founded upon disputed indebtedness and valuations that do not comply with the requirements of *Section 97* of the *Land Act.* 17. He further contends that the forced-sale valuations relied upon by the Respondents are substantially lower than the valuations conducted in 2023 when the loan facilities were advanced and accepted by the 1st Defendant. 18. According to him, the Plaintiff raised these concerns through a letter dated 6th February, 2026, pointing out that the reduced valuations were unexplained and unjustified despite there being no adverse market conditions, deterioration of the properties or any other factor capable of depressing their value. 19. He asserts that land is generally an appreciating asset and that the substantial decline in the valuations is commercially irrational and indicative of bad faith. 20. The deponent further avers that the disparities between the earlier and current valuations exceed the threshold contemplated under *Section 97(3)* of the *Land Act*, thereby giving rise to a statutory presumption that the chargee has breached its duty of care. 21. He contends that by proceeding with the auction on the basis of the impugned valuations, the Respondents are acting oppressively and in a manner intended to defeat the Plaintiff’s equity of redemption. 22. Lastly, the deponent states that unless the orders sought are granted, the charged properties will be sold at grossly undervalued prices, thereby causing the Plaintiff irreparable loss through the permanent loss of its proprietary interests and equity of redemption, which loss cannot adequately be compensated by damages. 23. He further avers that the application was brought without delay, that the Respondents will suffer no prejudice if the orders are granted, and that it is in the interests of justice that the *status quo* be preserved pending the hearing and determination of the suit. 24. The Court notes, however, that the averment in paragraph 17 of the affidavit relating to the use of a motor vehicle for transport business appears incongruous with the subject matter of the present application and is evidently irrelevant to the dispute before the Court. 25. **THE REPLYING AFFIDAVIT.** 26. The application is opposed and to that end the Defendant filed a replying affidavit sworn by **Phelix Ngolo,** in which he deposes that he is the Relationship Manager SME at the 1st Defendant’s Kisumu Supreme Branch and is duly authorised to swear the affidavit on behalf of the Defendants. He states that he is conversant with the facts of the matter and competent to respond to the Plaintiff’s application. 27. The deponent avers that pursuant to an offer letter dated 4th September 2023, the 1st Defendant extended a loan facility to the Plaintiff on the terms contained therein. He states that the Plaintiff has admitted receiving the loan facility and has expressly acknowledged being in default by admitting that due to short-term cash flow challenges, certain instalments became overdue. 28. He further deposes that the Plaintiff regularly received bank statements from the 1st Defendant setting out the repayments made, defaults and interest accruing on the facilities. He contends that the Plaintiff’s assertion that the 1st Defendant failed to provide a breakdown, reconciliation or detailed computation of the outstanding amount is false, noting that the Plaintiff’s own forensic auditor relied on the bank and loan statements supplied by the 1st Defendant in preparing the audit report. 29. The deponent avers that the document exhibited by the Plaintiff as the forensic audit report is merely a covering letter and does not include the full report or the referenced notes necessary to support the conclusions therein. He contends that the Plaintiff’s failure to place the complete report before the Court amounts to concealment of material information and demonstrates that the Plaintiff has approached the Court without clean hands in seeking equitable relief. 30. He further states that after the alleged audit, the Plaintiff wrote a letter dated 6th February, 2026 acknowledging receipt of correspondence notifying it of an outstanding debt of Ksh.27,803,629.03/-. 31. According to the deponent, although the Plaintiff sought reconciliation of an amount of Ksh.847,426/-, it did not indicate any intention to regularize the admitted default. He maintains that a dispute regarding the exact amount owing does not extinguish the 1st Defendant’s statutory power of sale where default has been admitted. 32. The deponent states that should the Court be inclined to grant any preservatory orders, the same ought to be conditional upon the Plaintiff paying to the 1st Defendant the sum of Ksh.26,956,203.03/-, which he contends is the undisputed portion of the outstanding debt based on the Plaintiff’s own correspondence. 33. On the issue of valuation, the deponent avers that the Plaintiff’s allegations that the charged properties have been undervalued are speculative, unsupported and made without the benefit of an independent valuation report from a qualified valuer. 34. He states that the valuations relied upon by the 1st Defendant were undertaken by qualified and independent valuers in compliance with *Section 97(2)* of the *Land Act,* prior to the intended exercise of the statutory power of sale. 35. He contends that the Plaintiff has not produced any expert evidence, including a counter-valuation, to demonstrate that the valuation relied upon by the 1st Defendant was irregular, conducted in bad faith or contrary to professional standards. 36. According to him, mere dissatisfaction with a valuation outcome does not amount to proof of undervaluation or breach of the chargee’s statutory duty of care. 37. The deponent further disputes the Plaintiff’s assertion that land must invariably appreciate in value, stating that market value is influenced by various factors including prevailing economic conditions, demand and supply dynamics, location-specific considerations and the circumstances of a forced sale. 38. He maintains that a forced-sale value is distinct from an open market value and that a difference between previous and current valuations does not, without more, establish illegality, fraud or breach of duty. 39. He further avers that *Section 97(3)* of the *Land Act* provides an adequate remedy in damages where a chargee is subsequently found to have breached its duty of care in relation to valuation. He therefore contends that any alleged undervaluation does not, in the circumstances, warrant the grant of an injunction or suspend the 1st Defendant’s accrued statutory power of sale. 40. Lastly, the deponent states that the Plaintiff remains in admitted default while the outstanding amount continues to attract interest and other contractual charges. He contends that the application is intended to delay the lawful realisation of the security and unjustly restrict the 1st Defendant’s contractual and statutory rights. He maintains that the Plaintiff has failed to establish a *prima facie* case with a probability of success, has not demonstrated irreparable loss incapable of compensation by damages, and that the balance of convenience favours allowing the 1st Defendant to proceed with the realisation of its security. 41. He therefore prays that the application be dismissed with costs. 42. **THE PARTIES’ SUBMISSIONS.** 43. The court directed that the application be canvassed by way of written submissions and both parties filed their respective submissions. 44. The Plaintiff contends in its submissions that it has satisfied the threshold for the grant of a temporary injunction restraining the Defendants from disposing of the charged properties, namely L.R. Nos. Kisumu/Kanyawegi/6558, Kisumu/Ojolla/2010, Kisumu/Ojolla/2014, Kisumu/Kanyawegi/6602 and Kisumu/Kanyawegi/5805, pending the hearing and determination of the suit. 45. The Plaintiff submits that although it obtained loan facilities from the 1st Defendant which were secured by charges over the suit properties, it disputes the accuracy, legality and computation of the amount alleged to be outstanding. 46. It contends that the 1st Defendant failed or refused to furnish a true, accurate and up-to-date statement of account despite demand, and proceeded to instruct the 2nd Defendant to advertise the charged properties for public auction without giving the Plaintiff an opportunity to redeem the loan. 47. The Plaintiff relies on the principles governing the grant of interlocutory injunctions as set out in ***Giella v Cassman Brown & Co. Ltd [1973] EA 358*** and reiterated by the Court of Appeal in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR,*** submitting that it is required to establish a *prima facie* case, demonstrate that it will suffer irreparable injury if the injunction is not granted, and show that the balance of convenience favours the grant of the orders sought. 48. On whether it has established a *prima facie* case, the Plaintiff relies on the decision in ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR,*** where the Court of Appeal defined a *prima facie* case as one where, based on the material presented, a tribunal properly directing itself would conclude that a legal right has apparently been infringed as to call for an explanation from the opposing party. 49. The Plaintiff submits that it has demonstrated infringement of its rights through the intended sale of the charged properties before determination of the disputed indebtedness and in circumstances where the Defendants allegedly failed to comply with their statutory obligations. 50. The Plaintiff further submits that this Court has jurisdiction under *Order 40 Rules 1* and *2* of the *Civil Procedure Rules* to issue temporary injunctions where property in dispute is in danger of being wasted, damaged, alienated or disposed of by a party to the suit. It argues that the charged properties are at risk of being sold before the dispute is determined, thereby warranting preservation of the *status quo.* 51. The Plaintiff contends that it raised legitimate concerns regarding the valuations relied upon by the Defendants through a letter dated 6th February, 2026, in which it challenged the unexplained and unjustified reduction in the value of the charged properties despite the properties being appreciating assets. 52. It relies on ***Rono v Bank of Africa Limited & Another (Commercial Case No. E005 of 2025) [2025] KEHC 9089 (KLR)*** for the proposition that an injunction may issue where refusal to grant it would result in disposal of the suit property before determination of the substantive dispute, whereas suspension of the sale would merely preserve the position pending hearing. 53. The Plaintiff further submits that it has raised serious questions concerning the Defendants’ compliance with *Section 97* of the *Land Act*, particularly the duty of a chargee exercising the statutory power of sale to obtain the best price reasonably obtainable at the time of sale. 54. It relies on ***Lewar Ventures Limited v Equity Bank Kenya Limited (Civil Case No. 5 of 2019) [2025] KEHC 11174 (KLR)*** for the proposition that a chargee is under a duty of care to ensure that the best possible price is obtained and that the chargor is not exposed to unnecessary loss. 55. The Plaintiff argues that the valuations relied upon by the Defendants are materially lower than the pre-charge valuations undertaken in 2023 when the loan facilities were advanced and accepted by the 1st Defendant. It submits that the reduction in values raises a genuine concern of undervaluation and breach of the statutory duty of care, which ought to be determined at trial. 56. On the issue of irreparable harm, the Plaintiff submits that it will suffer permanent and irreversible loss if the auction proceeds because the properties may be sold at undervalued prices, thereby defeating its equity of redemption and rendering the suit nugatory. 57. It relies on ***Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR*** for the proposition that irreparable injury refers to harm that cannot adequately be compensated by damages and that an applicant must demonstrate the likelihood of such injury if the injunction is not granted. 58. The Plaintiff further relies on ***Charles Cheruiyot Mosonik v Geoffrey Ng’eno [2018] eKLR and Mbuthia v Jimba Credit Corporation Ltd [1988] KLR 1*** for the proposition that at the interlocutory stage, the Court is not required to make final determinations on contested issues of fact and law, but should instead weigh the relative strength of the parties’ respective cases. 59. The Plaintiff also relies on ***Kenleb Cons Ltd v New Gatitu Service Station Ltd & Another [1990] KLR*** for the proposition that an applicant seeking an injunction must demonstrate the existence of a legal or equitable right requiring protection, and on ***Olympic Sports House Ltd v School Equipment Centre Ltd [2012] eKLR*** for the argument that a party should not be compelled to accept damages in place of protection of a crystallized right through an injunction. 60. In conclusion, the Plaintiff submits that it has met the requisite threshold for the grant of an injunction and urges the Court to allow the application dated 10th February, 2026 with costs. 61. It relies on *Section 27(1)* of the *Civil Procedure Act* and the decision in ***Supermarine Handling Services Ltd v Kenya Revenue Authority, Civil Appeal No. 85 of 2006*,** for the proposition that costs ordinarily follow the event unless the Court orders otherwise. 62. On their part, the Defendants argue that the application seeks to restrain them from exercising their statutory power of sale over properties which were voluntarily offered by the Plaintiff as security for a loan facility, despite the Plaintiff’s admission that it obtained the loan and subsequently defaulted in repayment. 63. They submit that the central issue is not whether the Plaintiff’s rights have been infringed, but whether a borrower in admitted default can invoke the equitable jurisdiction of the Court to delay the lawful realisation of security. 64. The Defendants submit that the application falls to be determined on the established principles governing interlocutory injunctions as set out in ***Giella v Cassman Brown & Co. Ltd [1973] EA 358*** and restated by the Court of Appeal in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.*** They contend that the Plaintiff must sequentially demonstrate the existence of a *prima facie* case with a probability of success, the likelihood of suffering irreparable injury, and, where necessary, that the balance of convenience favours the grant of an injunction. 65. On whether the Plaintiff has established a *prima facie* case, the Defendants submit that the Plaintiff’s own affidavit confirms that it obtained the loan facility and defaulted in repayment. They argue that once default occurred, the 1st Defendant’s statutory power of sale crystallized, and the Plaintiff cannot prevent its exercise merely by disputing the exact amount outstanding. 66. The Defendants rely on ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125,*** where the Court of Appeal adopted the principle that a mortgagee will not ordinarily be restrained from exercising its power of sale merely because the amount due is disputed, the chargor has commenced redemption proceedings, or objects to the manner in which the sale is being arranged. 67. They submit that the Plaintiff’s challenge to the loan balance does not extinguish or suspend the 1st Defendant’s statutory right to realize its security. 68. The Defendants further contend that the Plaintiff’s assertion that it was denied access to bank statements is contradicted by the Plaintiff’s own forensic auditor, who acknowledged receipt of bank and loan statements for the years 2024 and 2025 upon which the audit was based. 69. They argue that the Plaintiff’s failure to place the complete forensic audit report before the Court, and instead relying only on the covering letter, amounts to withholding material information and demonstrates lack of candour in seeking equitable relief. 70. On the issue of valuation, the Defendants submit that the Plaintiff’s allegation that the charged properties have been undervalued is speculative, unsupported and not backed by any expert evidence. 71. They contend that the assertions were made through the Plaintiff’s advocates, who are not valuation experts, and that no independent valuation report or counter-valuation was produced to challenge the reports relied upon by the 1st Defendant. 72. The Defendants argue that, unlike the Plaintiff, the 1st Defendant instructed a qualified and independent valuer to undertake a current forced-sale valuation in compliance with *Section 97* of the *Land Act.* They submit that mere dissatisfaction with the outcome of a valuation does not amount to proof of undervaluation, bad faith or breach of the chargee’s statutory duty of care. 73. On whether the Plaintiff will suffer irreparable harm, the Defendants submit that the alleged loss is not irreparable because the suit properties were voluntarily offered as security and therefore became commercial commodities capable of valuation. 74. They rely on ***Nguruman Limited*** (supra) for the proposition that speculative injury or mere apprehension is insufficient and that irreparable harm must be actual, substantial and incapable of adequate compensation by damages. 75. The Defendants further submit that *Section 99(4)* of the *Land Act* provides a statutory remedy in damages where a sale is subsequently found to have been irregular, thereby demonstrating that monetary compensation is an adequate remedy. They therefore contend that the Plaintiff has failed to establish that the intended sale would occasion injury incapable of being compensated by an award of damages. 76. On the balance of convenience, the Defendants submit that the same favours them because the Plaintiff remains in admitted default while interest continues to accrue on the outstanding debt. 77. They argue that restraining the exercise of the statutory power of sale would unfairly fetter the rights of a secured creditor while allowing a defaulting borrower to continue benefiting from the security. 78. Relying again on ***Nguruman Limited,*** (supra), the Defendants submit that the balance of convenience only becomes relevant where there is doubt regarding the adequacy of damages available to either party. 79. They contend that since the Plaintiff’s alleged loss is compensable in damages, whereas the Defendants are being prevented from exercising a lawful statutory remedy, the relative inconvenience lies with the Defendants. 80. In conclusion, the Defendants submit that the Plaintiff’s case is devoid of merit because the debt, the default and the validity of the security are admitted. They argue that the Plaintiff has approached the Court with unclean hands by withholding material information and failing to demonstrate any genuine proposal to redeem the debt. 81. They therefore urge the Court to dismiss the application, discharge any interim orders issued, permit the Defendants to proceed with realization of the charged properties in accordance with the law, and award costs of the application to the Defendants. 82. **ISSUES FOR DETERMINATION.** 83. Having considered the application, the affidavits in support and opposition thereto, the submissions by the parties and the applicable law, I am of the view that the issues arising for determination are: 84. Whether the Plaintiff has established a *prima facie* case with a probability of success to warrant the grant of a temporary injunction. 85. Whether the Plaintiff has demonstrated that it will suffer irreparable harm that cannot adequately be compensated by an award of damages if the injunction is not granted. 86. Whether the balance of convenience favours the grant or refusal of the temporary injunction. 87. **ANALYSIS AND FINDINGS.** 88. The first issue for determination is whether the Plaintiff has established a *prima facie* case with a probability of success. 89. The principles applicable in determining an application for an interlocutory injunction are now well settled. In ***Giella v Cassman Brown & Co. Ltd*** (supra), the Court held that an applicant seeking an interlocutory injunction must establish a *prima facie* case with a probability of success, demonstrate that it stands to suffer irreparable injury which cannot adequately be compensated by damages, and where the Court is in doubt, determine the matter on a balance of convenience. 90. These principles were restated by the Court of Appeal in ***Nguruman*** (supa), where the Court emphasized that the three requirements are sequential and separate hurdles which an applicant must surmount. The first question, therefore, is whether the Plaintiff has demonstrated a *prima facie* case. 91. The Court of Appeal in ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others*** (supra) defined a *prima facie* case as one where, on the material presented to the Court, a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal. 92. In the present matter, it is not disputed that the Plaintiff obtained loan facilities from the 1st Defendant, which facilities were secured by charges over the suit properties. It is also not disputed that the Plaintiff fell into arrears in servicing the facilities. Indeed, the Plaintiff’s own evidence acknowledges that due to short-term cash-flow challenges, certain instalments became overdue. 93. The Plaintiff’s primary contention is that the amount demanded by the 1st Defendant is disputed and that the 1st Defendant has failed to provide a proper reconciliation of the loan account. The Plaintiff further contends that the 1st Defendant’s intended exercise of the statutory power of sale is unlawful because the valuations relied upon are allegedly substantially lower than previous valuations undertaken in 2023. 94. On the issue of indebtedness, the Court takes the view that a dispute regarding the exact amount outstanding does not, without more, invalidate a chargee’s statutory power of sale where default has occurred. A chargor cannot restrain a chargee from exercising its statutory power of sale merely by disputing the amount due. The proper remedy where accounts are disputed is ordinarily reconciliation and, where necessary, determination of the accounts at trial. 95. In ***Mrao Ltd v First American Bank of Kenya Ltd & 2 others*** (supra), the Court of Appeal adopted the principle that a mortgagee will not ordinarily be restrained from exercising its power of sale merely because the amount due is disputed, the mortgagor has commenced redemption proceedings, or objects to the manner in which the sale is being arranged. The underlying rationale is that the security was voluntarily created by the chargor and is available to the chargee upon default, subject to compliance with the law. 96. In the present case, the Plaintiff has not disputed the existence of the loan facilities or the validity of the charges created over the suit properties. Its complaint is essentially that the computation of the outstanding amount is erroneous. While that may constitute a triable issue, it does not, on the material before the Court, demonstrate that the 1st Defendant has no right to proceed with realization of the security. 97. The Plaintiff also contends that it was denied access to statements and account information. However, this assertion appears to be contradicted by the evidence before Court. The 1st Defendant has pointed out that the Plaintiff’s own forensic auditor acknowledged receipt of the bank and loan statements for the relevant period and relied upon them in preparing the audit findings. This suggests that the Plaintiff had access to the material necessary to interrogate the account. 98. The Court is also not persuaded that the Plaintiff has demonstrated a *prima facie* case based on the alleged undervaluation of the suit properties. The Plaintiff alleges that the current valuations are lower than those undertaken in 2023 and argues that land is ordinarily an appreciating asset. 99. However, no independent valuation report from a qualified valuer has been presented to demonstrate that the valuations relied upon by the 1st Defendant are inaccurate, irrational or substantially below the market value of the properties. 100. A valuation is an expert exercise dependent on various factors, including prevailing market conditions, location, demand and supply dynamics, and the circumstances of the intended sale. The fact that a previous valuation yielded a different figure does not, without more, establish undervaluation, fraud or breach of statutory duty. 101. *Section 97* of the *Land Act* imposes a duty upon a chargee exercising the power of sale to obtain the best price reasonably obtainable at the time of sale and to act with due regard to the interests of the chargor. 102. However, an allegation of breach of that duty must be supported by some credible material demonstrating that the chargee failed in that obligation. In the present case, the Plaintiff has merely raised allegations of undervaluation without presenting expert evidence to controvert the valuation relied upon by the 1st Defendant. 103. The Court therefore finds that although the Plaintiff has raised issues that may properly be considered at trial, it has not demonstrated, at this interlocutory stage, that its legal rights have been infringed in a manner warranting the intervention of the Court by way of injunction. The Plaintiff has consequently failed to establish a *prima facie* case with a probability of success. 104. The second issue for me to address is whether the Plaintiff has demonstrated that it will suffer irreparable harm incapable of compensation by damages. 105. Having found that the Plaintiff has not established a *prima facie* case, strictly speaking, the Court need not proceed to consider the second limb. However, for completeness, the Court shall consider whether the Plaintiff has demonstrated irreparable harm. 106. The Plaintiff contends that unless restrained, the Defendants will sell the suit properties at undervalued prices, resulting in permanent loss of ownership and the Plaintiff’s equity of redemption. It argues that such loss cannot adequately be compensated by damages. 107. The concept of irreparable injury does not mean that the injury must be one that is physically incapable of repair. Rather, it refers to injury for which damages would not be an adequate remedy. In ***Nguruman*** (supra), the Court of Appeal stated that speculative injury is insufficient and that the applicant must demonstrate actual, substantial and demonstrable injury that cannot adequately be compensated by damages. 108. In this matter, the suit properties were voluntarily charged by the Plaintiff as security for the loan facilities advanced by the 1st Defendant. The Plaintiff agreed that in the event of default, the charged properties would be available for realization in accordance with the law. The loss of charged property following a lawful exercise of a statutory power of sale is therefore not, without more, irreparable injury. 109. Further, the *Land Act* recognizes that where a chargee breaches its duty of care in relation to valuation or sale, the chargor may pursue appropriate remedies, including damages. The Plaintiff has not demonstrated that the alleged undervaluation or any other complaint is incapable of being addressed through monetary compensation should it ultimately succeed at trial. 110. The Court therefore finds that the Plaintiff has failed to demonstrate that it will suffer irreparable harm incapable of compensation by damages if the injunction is declined. 111. The third issue for determination is whether the balance of convenience favours the grant of the injunction. This limb only arises where the Court is in doubt after considering the first two requirements. Nevertheless, the Court has considered it for completeness. 112. The Plaintiff argues that the balance of convenience favours preservation of the *status quo* because the debt remains secured and the Defendants will suffer no prejudice if the sale is postponed. The Defendants, on the other hand, contend that granting the injunction would unfairly prevent them from exercising a statutory right while the outstanding debt continues to accrue interest. 113. The Court agrees with the Defendants that the balance of convenience does not favour restraining the realization of security in circumstances where default is admitted and the debt remains unpaid. A secured creditor is entitled to enjoy the benefit of the security created in its favour, provided that it complies with the statutory requirements governing realization. 114. On the other hand, while the Plaintiff stands to lose the properties if the sale proceeds, that loss is not necessarily irreparable since the Plaintiff may pursue appropriate remedies if it establishes at trial that the sale was unlawful or conducted in breach of statutory obligations. 115. The Court must also consider that continued delay in realization of the security may prejudice the 1st Defendant, as interest continues to accrue on the outstanding facility while the value of the security and the circumstances surrounding realization remain uncertain. 116. In the circumstances, the balance of convenience tilts in favour of allowing the 1st Defendant to proceed with realization of the security in accordance with the law. The Plaintiff has therefore failed to satisfy this final requirement for the grant of an interlocutory injunction. 117. **DISPOSITION AND ORDERS.** 118. Accordingly, having considered all the circumstances of this case, I find that the Plaintiff has not met the threshold for the grant of a temporary injunction. 119. The notice of motion dated 10th February, 2026 is therefore without merit and is hereby dismissed with costs to the Defendants. Any interim orders previously issued in favour of the Plaintiff are hereby discharged. 120. The matter will be mentioned on 28th October, 2026 for pretrial conference. DELIVERED (virtually), DATED and SIGNED this 24th day of July, 2026. **JOE M. OMIDO** **JUDGE** FOR THE PLAINTIFF: **Ms. Ochieng** for **Mr. Obach.** FOR THE DEFENDANTS: **Mr. Olando** for **Mr. Odongo.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**