https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11955

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **COMMERCIAL CASE NO. E005 OF 2025** SHAMIT SINGH VARMA **1ST PLAINTIFF/APPLICANT** POONAM VARMA **2ND PLAINTIFF/APPLICANT** KITMIN HOLDINGS LIMITED **3RD PLAINTIFF/APPLICANT** **VERSUS** NCBA BANK KENYA PLC **DEFENDANT/RESPONDENT** SUNIT SINGH VARMA **INTERESTED PARTY** **RULING** **Introduction** 1. On 29th July 2025, the parties to this suit filed a Consent which, on its face, brought to an end what had until then been a live dispute over the Defendant’s entitlement to exercise its statutory power of sale over the property known as Athi River/Athi River Block 5/136 (“the suit property”). 2. The Consent did not extinguish the charge or the Defendant’s underlying security; it suspended enforcement of the statutory power of sale, on terms. Those terms were not generous, but they were clear: the Plaintiffs had one hundred and twenty (120) days from the date of the Consent to procure a purchaser and complete a sale of the suit property, remitting the entire sale proceeds of Kshs. 75,000,000/- directly to the Defendant in full and final settlement of the 3rd Plaintiff’s indebtedness. 3. In default, the Defendant would be at liberty to exercise its statutory power of sale and to recover whatever balance remained outstanding. 4. That is the fault line along which this application is fought. By an Amended Notice of Motion dated 23rd July 2026 brought under Order 40 and Order 51 of the Civil Procedure Rules, section 96 of the Land Act and the inherent jurisdiction of the Court, the Plaintiffs ask this Court to declare that the Consent, though never varied by any further order recorded in court, was nonetheless varied by the subsequent conduct and dealings of the parties, to the extent of substituting a later timeline for completion of the sale. 5. They ask, in consequence, for a further ninety (90) days from the date of this ruling within which to complete the sale on the original terms, and for orders restraining the Defendant, in the meantime, from selling the suit property or calling upon the personal guarantees of the 1st and 2nd Plaintiffs. 6. The Defendant, through the Replying Affidavit of its Senior Legal Counsel, Christine Wahome, sworn on 23rd July 2026, resists the application in its entirety. Its position, shortly put, is that it is enforcing nothing more than what the parties themselves bargained for in July 2025, that it has at no point agreed to displace the timeline the Plaintiffs failed to meet, and that the Plaintiffs' claim of variation is a late and evidentially unsupported attempt to hold at bay a statutory remedy that has, by the Plaintiffs' own default, already crystallised. 7. Whether that is so is not to be resolved by slogans on either side. It requires a careful look at what actually passed between the parties after 26th November 2025, when the 120 days given by the Consent lapsed, and at what the law demands before a court will hold that parties to a recorded consent have, by conduct alone, rewritten its terms. **Background** 1. The Consent of 29th July 2025 was, in substance, a negotiated compromise of what would otherwise have been a contested claim to injunctive relief against the Defendant’s statutory power of sale. 2. Its material terms, which are not disputed, were that: (a) the Defendant's power of sale over the suit property had validly arisen; (b) the Plaintiffs would have 120 days to procure a sale by private treaty at Kshs. 75,000,000/-, payable in full to the Defendant in settlement of their liability; and (c) in default of redemption within that period, the concession to accept Kshs. 75,000,000/- in full settlement would lapse, the right of redemption would be extinguished, and the Defendant would be free to exercise its statutory power of sale and pursue any outstanding balance. 3. The 120 days lapsed on 26th November 2025. It is common ground that no sale had by then been completed. What happened next is where the parties part company on characterisation, though less so on the underlying facts. 4. The Plaintiffs identified an interested party, the 1st Plaintiff's brother, Sunit Singh Varma, as a prospective purchaser. A sale agreement was drafted, and it is not disputed that the Defendant participated in reviewing its terms; the Plaintiffs’ own submissions record, at paragraph 15, that the Defendant rejected a proposal that the completion period under that agreement be fixed at 120 days and insisted, instead, on 60 days. The sale agreement was executed on 9th April 2026. 5. Under Clause 3 of that agreement, the purchaser and the 1st Plaintiff could extend the completion date “for good reason.” On 22nd June 2026, the purchaser’s advocates wrote seeking such an extension. 6. The 1st Plaintiff's advocates, Bob & Bob, replied on 23rd June 2026, the letter now exhibited as “SSV-2”, confirming that their client was *“willing to grant the extension of time requested, subject to NCBA Bank (the Chargee) agreeing to such extension,”* and undertaking to *“revert … at our earliest convenience once we have further clarity.”* 7. On 24th June 2026, the Plaintiffs sought precisely that concurrence from the Defendant. The Defendant's evidence is that the request was expressly declined. 8. The purchaser had, by then, deposited Kshs. 7,500,000/- directly with the Defendant, ten percent of the consented purchase price, leaving a balance of Kshs. 67,500,000/- said to be dependent on the outcome of a separate probate matter: an error in the grant of representation to an estate from which the purchaser’s completion funds were to be drawn, now the subject of an application to rectify the grant, fixed for mention on 1st October 2026. 9. On 21st July 2026, Regent Auctioneers, instructed by the Defendant, served the Plaintiffs with a courtesy notice: the suit property would be advertised for sale on 10th August 2026 and sold by public auction on 27th August 2026, in recovery of an outstanding amount now quantified at Kshs. 169,029,931.54 as at 20th July. 10. It was against that notice that the 1st Plaintiff swore a further affidavit on 22nd July 2026, and it was in response to the Defendant's Replying Affidavit of 23rd July 2026 that the Plaintiffs, the same day, swore a Supplementary Affidavit exhibiting the Bob & Bob letter, before amending and re-filing their Notice of Motion on 24th July 2026 to add, for the first time, a prayer for a declaration of variation. **The Application** 1. The Amended Notice of Motion seeks, in substance: (a) certification of urgency; (b) and (c) temporary injunctions restraining the Defendant from selling the suit property, and from calling upon the personal guarantees of the 1st and 2nd Plaintiffs, “pending the hearing and determination of this application”; (d) a declaration that the parties, by their conduct, varied the Consent to allow the 1st Plaintiff to sell the suit property within 60 business days from 9th March 2026, or such later date as may be agreed in writing; and (e) an order allowing the Plaintiffs 90 days from the date of this ruling to complete the sale on the original Kshs. 75,000,000/- terms. 2. Because this ruling determines the application itself, prayers (b) and (c), framed to operate only pending that determination, do not survive as freestanding interim relief; they fall to be considered, if at all, only as they bear on whether the final relief at (d) and (e) ought to be granted. **The Rival Cases** 1. The Plaintiffs’ case, as developed in their written submissions, is that a consent, being simultaneously a contract and a decree, is as capable of variation by the ordinary law of contract as any other agreement, and that the subsequent negotiations and conduct of the parties satisfied the ordinary requirements of a binding variation, objectively assessed, so as to remove the strict 120-day timeline. 2. They invoke ***Wasike v Wamboko*** for the proposition that a consent decree may be varied on grounds analogous to those on which a contract may be rescinded or varied; ***Ali Abdi Mohamed v Kenya Shell & Company Limited*** for the objective test of contract formation and variation by conduct; and ***Benson Ndoli Gwage v Lakbir Dhillion*** for the proposition that a party who has approved a transaction and benefited from it cannot thereafter be heard to disown it. 3. The Defendant’s case is that a consent order, being binding on the parties, may only be set aside or varied on proof of fraud, collusion, an agreement contrary to the policy of the court, or insufficiency of material facts and that a court will not rewrite the parties' bargain in the absence of coercion, fraud, or undue influence, citing ***National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another***. It says ***Ali Abdi Mohamed*** is beside the point, because that case concerned whether a contract had been formed by conduct in the first place, not whether an existing, recorded consent had been varied. It denies any waiver, pointing to its clear and contemporaneous rejection, first, of the Plaintiffs' request for a 120-day completion period under the sale agreement, and second, of the extension sought on 24th June 2026; and it says the Plaintiffs cannot found an estoppel on conduct that is at least as consistent with mere indulgence, pending an attempt at redemption, as with any surrender of its rights. **Issues for Determination** 1. Four questions arise: 1. *Whether the form in which the Plaintiffs bring their challenge, by application within the suit rather than by a fresh action, is open to them;* 2. *Whether the Consent of 29th July 2025 was in fact varied, whether by a concluded fresh agreement or by conduct amounting to an estoppel;* 3. *Whether, independently of variation, the Defendant is estopped from exercising its statutory power of sale or from calling upon the personal guarantees; and* 4. *Whether, applying the settled principles governing interlocutory relief, the reliefs sought ought to be granted*. **Analysis and Determination** ***(i) The competence of the challenge*** 1. I deal shortly with the first question because it was not seriously contested. A consent recorded in a suit is not placed beyond challenge altogether merely because no ordinary appeal lies from it; where a party contends that a consent has been vitiated, or subsequently varied, the authorities recognise more than one avenue open to it. 2. That much appears from the judgments in ***Wasike v Wamboko (Civil Appeal 81 of 1984) [1985] KECA 149 (KLR)*** itself, where both Hancox JA and Nyarangi Ag JA recognised that an aggrieved party may proceed either by a separate suit or by an application within the suit in which the consent was recorded, the choice between them, in Nyarangi Ag JA's words, depending on ***“the manner by which the aggrieved party wishes to present his case and on the nature of the order sought.”*** 3. The Defendant has met this application squarely on its merits, without raising any objection to the form in which it is brought, and I am satisfied that the Court has jurisdiction to entertain it as framed. ***The threshold for disturbing a consent*** 1. It is necessary to be precise about what the law requires before a court will hold that a consent recorded between parties has been displaced, because much of the argument on both sides assumes an answer to this question rather than stating it. 2. The starting point, as both sides recognise, is that a consent order is a hybrid creature: at once a judgment of the court and a contract between the parties. The Court of Appeal said as much in **Wasike v Wamboko (supra),** holding that ***“a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out,”*** and going on to cite with approval the English authority of **Purcell v F.C. Trigell Ltd [1970] 2 All ER 671**, where Winn LJ held that a consent order can ***“really only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons****.”* 3. The same principle was affirmed, in the specific context of a bank’s consent as to terms of recovery, in **Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485**, where it was held that ***“a consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts.”*** 1. None of that, however, forecloses variation by a fresh, subsequent agreement of the parties, objectively established. A consent, precisely because it has contractual effect, may in principle be varied the way any contract may be varied but it must actually be varied, by conduct or words that objectively disclose agreement on new and certain terms; it is not enough to show that one party behaved with more patience, or less rigidity, than the letter of the original bargain strictly required. 2. The Plaintiffs are right to point to **Ali Abdi Mohamed v Kenya Shell & Company Limited, Civil Appeal No. 187 of 2011**, for the proposition that a contract, or a variation of one, may be found in conduct alone: this Court's Court of Appeal there held that ***“it therefore follows that a contract can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded,”*** applying **Timoney and King v King 1920 AD 133 at 141**, and finding on the facts of that case an enforceable contract ***“between the parties by reason of Conduct.”*** 3. I should record, since the point bears on the weight the submissions place on it, that the further passage the Plaintiffs quote at length, attributed to the Court of Appeal “citing with approval Lord Clarke in ***RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH [2010] UKSC 14***” does not appear in the reported text of the Ali Abdi Mohamed judgment placed before me. It is nonetheless a correct and well-known statement of the English law of contract formation and variation by conduct, and I have had regard to it on that footing since it adds nothing to what Ali Abdi Mohamed’s own reasoning already conveys: that whether parties are bound, and on what terms, is to be judged objectively from what was communicated by words or conduct, not from what either side privately intended. 4. It also runs through the general sanctity law accords to concluded bargains. In **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR),** the Court of Appeal held, in a case concerning precisely the recovery of a secured debt, that ***“a court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”*** 1. If that discipline restrains a court from rewriting a bargain the parties made, it must with equal force restrain a court from treating a bargain as rewritten merely because one party showed the other some latitude. 2. The task, then, is not to ask whether the Defendant behaved reasonably, or generously, or consistently with an eventual sale but the narrower and more exacting one: did the parties, judged objectively by what was communicated between them, agree upon all the terms that would be essential to a legally binding variation of the 120-day redemption period? It is to that question that I now turn. ***Was the Consent varied?*** 1. There is force, at first sight, in the Plaintiffs’ position. It is not disputed that the Defendant engaged substantively with the sale process well beyond the 120 days: it reviewed and, in the Plaintiffs’ own words, “insisted” on particular terms of the sale agreement; it rejected a 120-day completion clause in favour of a 60-day one, which is not the conduct of a party wholly indifferent to how or when the transaction would be concluded; and it accepted, directly, a deposit of Kshs. 7,500,000/- from the purchaser on 9th April 2026, well over four months after the original redemption window had closed. 2. A defendant that intended, all along, to hold its chargor strictly to a deadline that had already lapsed would have had little reason to spend the intervening months negotiating the fine print of a sale it did not intend to permit. That is not, on the test the Plaintiffs themselves invoke, a case to be dismissed out of hand. 3. But an objective test cuts both ways, and it is not satisfied merely because conduct is capable of more than one interpretation; it is satisfied only where the conduct, viewed as a whole, discloses agreement on terms sufficiently certain to be enforced. Two features of the record persuade me that it is not satisfied here. 4. First, the one document on this record that speaks directly to the question of an extension of time is not evidence of a concluded variation; it is evidence of its absence. The letter of 23rd June 2026 from Bob & Bob Advocates records, in terms, that the 1st Plaintiff was prepared to grant an extension to the purchaser only *“subject to NCBA Bank (the Chargee) agreeing to such extension,”* and that the writers would revert once they had “further clarity.” 5. That is the language of a proposal awaiting the Defendant’s assent, drafted by the Plaintiffs’ own advocates, at the very time the Plaintiffs now say the Consent had already been varied by conduct. It is difficult to reconcile a claim that the timeline had, by April 2026, already been abandoned by agreement, with a letter written two months later that treats the Defendant's agreement as a precondition still to be secured. And on the very next day, 24th June 2026, that agreement was sought refused. 6. Nothing in the three affidavits sworn by the 1st Plaintiff meets that refusal head-on. The Further Affidavit of 22nd July 2026 and the Supplementary Affidavit of 23rd July 2026 assert that the parties’ conduct varied the Consent; neither denies, nor offers any account inconsistent with, the Defendant’s specific averment that the request of 24th June 2026 was expressly declined. 7. An applicant who asks a court to find that a written request for the very extension it relies upon was in fact met with continued cooperation, rather than refusal, must say so; it is not open to it simply to leave an adverse, specific and uncontradicted averment unanswered and expect the resulting silence to be resolved in its favour. 8. Second, and independently, the term the Plaintiffs ask this Court to declare that the Consent was varied “to the extent allowing the 1st plaintiff to sell the suit property to the interested party within 60 business days from 9th March 2026” cannot be located anywhere on this record. No letter, minute, e-mail or exhibited document fixes 9th March 2026 as a date of any significance; the only date of comparable moment appearing anywhere in the papers is 9th April 2026, the date the sale agreement was in fact executed, a full month later, and never reconciled with the date pleaded in prayer (d). 9. A party who asks the Court to hold that specific, certain terms were objectively communicated and accepted must, at the least, be able to identify those terms without contradicting its own pleadings. Where an applicant's own case cannot settle on the date from which its alleged new term is even said to run, it cannot be said that the parties agreed upon all the terms essential to a binding variation. Uncertainty of this kind is not a minor pleading infelicity; it goes to whether a variation, as opposed to an unformed and unfinished negotiation, ever came into existence at all. 10. There is, moreover, a further and to my mind decisive difficulty, which the Plaintiffs’ own case exposes. Even taking their pleaded variation at its very highest, even assuming, contrary to the findings above, that the Consent was varied precisely as prayer (d) describes it, sixty business days from 9th March 2026 expire, on any ordinary computation, at or about the beginning of June 2026. That is some seven weeks before Regent Auctioneers served their notice on 21st July 2026, and some seven weeks before the Amended Notice of Motion, asserting that very variation, was filed on 24th July 2026. 11. On the Plaintiffs’ own pleaded case, then, they were already in default of their own alternative deadline when the Defendant acted, and remained so when they came to this Court. An applicant cannot ask a court to restrain a chargee from enforcing its security on the footing of a substituted deadline that had, by the applicant's own reckoning, already passed. 12. Nor is it any answer to say that completion was imminent and merely awaited administrative tidying. The purchaser's ability to raise the balance of Kshs. 67,500,000/- is tied to the rectification of a grant of representation in a wholly separate probate matter, an application which, as at the date of this ruling, is fixed only for mention on 1st October 2026. Far from demonstrating that completion is close at hand, this confirms that no reliable date for completion can presently be given at all; the sale, on the Plaintiffs' own account, remains contingent on an event of uncertain timing in a different cause, before a different registry. 13. For these reasons, I am not satisfied that the Plaintiffs have discharged even the threshold burden of showing a right *“apparently … infringed by the opposite party as to call for an explanation or rebuttal,”* to adopt the language the Court of Appeal used in defining a prima facie case in **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KECA 175 (KLR).** The material before me does not disclose that the Consent of 29th July 2025 was varied, whether as pleaded or in any other definite respect. ***(iv) Estoppel*** 1. The Plaintiffs advance, in the alternative, an estoppel: that the Defendant, having reviewed and approved the sale agreement and having received the benefit of the Kshs. 7,500,000/- deposit, cannot now be heard to deny the process it facilitated. They rely on the doctrine of approbation and reprobation as applied in **Benson Ndoli Gwage v Lakbir Dhillion [2019] KEELRC 2541 (KLR)**, where it was held that ***“a party cannot approbate and reprobate at the same time. That is to say a party cannot be allowed to choose which part of the same transaction to respect and which one to reject.”*** 1. Two difficulties confront this argument. The first is that a promissory estoppel of this kind requires, as the Court of Appeal recorded in **Chase International Investment Corporation and Another v Laxman Keshra and 3 others [1978] KECA 7 (KLR),** ***“proof of a clear and unambiguous representation intended to affect legal relationships.”*** 1. I have already found that no such clear and unambiguous representation is made out on this record; to the contrary, the one document that squarely addresses the point treats the Defendant's agreement as outstanding, and the Defendant's own evidence, unrebutted, is that agreement was expressly refused. 2. The second difficulty is that the approbation-and-reprobation principle, properly understood, does not assist the Plaintiffs on these facts, and may in truth cut the other way. In ***Benson Ndoli Gwage***, the claimant had accepted, in hand, the entire sum tendered as full and final settlement under the impugned consent. 3. Here, by contrast, the Kshs. 7,500,000/- accepted by the Defendant was never tendered, and could not have been accepted, as anything other than a part-payment against a Kshs. 75,000,000/- purchase price that has never been completed. Receiving a partial sum in reduction of a debt is not an act inconsistent with continuing to hold, and if necessary realise, the security for the balance; it is precisely what a secured creditor is expected to do. 4. If the doctrine has any purchase on these facts at all, it is the Plaintiffs, not the Defendant, who ask to keep the benefit of many months of forbearance while resisting the very consequence that the parties bargained for at the outset. ***(v) The personal guarantees*** 1. The Plaintiffs’ further complaint that the Defendant has blocked the 2nd Plaintiff’s credit card and threatens to call upon the personal guarantees of the 1st and 2nd Plaintiffs rests on the proposition that the obligations of the 3rd Plaintiff, Kitmin Holdings Limited, cannot be visited upon the 2nd Plaintiff, a separate legal person, without due process. 2. That proposition misconceives the nature of a personal guarantee. A guarantee is not a mechanism by which a company's liabilities are imposed on a stranger; it is the guarantor's own, voluntarily assumed, independent contractual undertaking to answer for another's debt. Once given, the guarantor's liability is engaged by the principal debtor's default, on the terms of the guarantee itself, and the creditor's right to call upon it exists independently of, and is not conditioned upon, any other security it may hold. 3. As the High Court held in **Peter Munga v African Seed Investment Fund LLC, Insolvency Cause No. 2 of 2016**, ***“as a Secured Creditor with multiple remedies, the Creditor was entitled to elect which to enforce, at what time, in what order and in the way it chose.”*** 4. The Court of Appeal made the same point **in Barclays Bank of Kenya Ltd v Kepha Nyabera & 191 others [2013] eKLR**, holding that ***“the general rule is that a secured creditor is not obliged to resort to his security. He can claim repayment by the debtor personally and leave the security alone.”*** 5. Nothing in the Plaintiffs' affidavits identifies any defect in the guarantees themselves, whether of form, capacity or consent; nor is any basis pleaded for treating the Defendant's recourse to them as premature, unlawful or otherwise vitiated. An assertion that a measure is “unjust,” without more, is not a ground on which equity will restrain the lawful enforcement of a contract of suretyship the 2nd Plaintiff chose to enter. This limb of the application must fail for want of any prima facie case. ***(vi) Injunctive relief and the balance of convenience*** 1. The principles governing the grant of an interlocutory injunction in Kenya are settled and were not in dispute. As Spry V-P held for the Court of Appeal for East Africa in **Giella v Cassman Brown & Co Ltd [1973] EA 358**, ***“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 … [and] when the court is in doubt, it will decide the application on the balance of convenience.”*** 2. I have found, for the reasons already given, that no prima facie case of variation, or of estoppel, has been made out; strictly, that is sufficient to dispose of the application. I nonetheless address the remaining limbs, since they reinforce rather than disturb that conclusion. 3. On irreparable harm, the Plaintiffs' own submissions are, if anything, self-defeating. Their case is that their liability, capped at Kshs. 75,000,000/- under the Consent, will “explode” to a figure in excess of Kshs. 100,000,000/- now, on the auctioneers’ notice, standing at Kshs. 169,029,931.54, if the sale is not permitted to proceed. That is a monetary consequence, precisely quantified, and it flows not from any wrongdoing by the Defendant but from the plain terms of the bargain the Plaintiffs themselves struck: the concession to accept Kshs. 75,000,000/- in full settlement was, on the face of the Consent, conditional upon redemption within the stipulated period. 4. A condition not met does not survive its own breach merely because the resulting figure is now larger than the Plaintiffs would prefer; and a loss that can be stated to the shilling is, definitionally, one that damages can compensate, not one that equity need intervene to prevent. 5. This case bears a close and instructive resemblance to **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others,** in which a chargor, having earlier reached a repayment arrangement with its chargee bank and then fallen short of it, sought to restrain the bank's exercise of its statutory remedies. The Court of Appeal there defined a prima facie case as *“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 as to call for an explanation or rebuttal from the latter,”* and went on to dismiss the appeal, holding in substance that a party who invokes equity while itself falling short of the good faith equity demands is not entitled to an injunction against remedies its own default has triggered. 6. The parallel is not exact but the underlying discipline is the same one I apply in this case: a chargor who invokes equity to restrain a chargee’s statutory remedy must come with a case that is more than merely arguable, and cannot expect the Court to freeze indefinitely a chargee’s exposure to an escalating, interest-bearing debt on the strength of a variation it has not established, a timeline it has already missed even on its own account, and a completion date that remains, months later, entirely unfixed. 7. Balancing the equities, I am satisfied they favour the Defendant. The Defendant has, since 26th November 2025, forgone enforcement of a security it was, on the Plaintiffs’ own admission, entitled to realise, while its exposure has continued to accrue at commercial rates and has now more than doubled. 8. The Plaintiffs, for their part, offer no undertaking as to damages, no demonstrated ability to complete within any fixed period, and no firmer prospect of completion than a mention date in an unrelated succession matter some ten weeks away. To restrain the Defendant further, on this record, would be to convert what the parties bargained for as a bounded, 120-day opportunity into an indefinite one imposed on the Defendant by the Court rather than agreed by the Defendant itself. **Disposition** 1. For the reasons set out above, I find that the Plaintiffs have not established, whether on a prima facie basis or otherwise, that the Consent recorded on 29th July 2025 was varied in the manner pleaded, or that the Defendant is estopped from exercising its statutory power of sale over the suit property or from calling upon the personal guarantees of the 1st and 2nd Plaintiffs. The Amended Notice of Motion dated 23rd July 2026 must accordingly fail. 2. I make the following orders: 1. The Amended Notice of Motion dated 23rd July 2026 is hereby dismissed in its entirety. 2. Any interim orders subsisting in respect of the said Motion are hereby discharged. 3. The costs of the application shall by the ordinary rule that costs follow the event under section 27 of the Civil Procedure Act applying, be borne by the Applicants, payable to the Respondent. **It is so ordered.** **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30th DAY OF JULY 2026.** **MURUNGA, J** *Delivered on virtual platform in the presence of:* *Ayieko Owino for the Plaintiff/Applicant* *Omoni h/b for Ogunde for the Defendant/Respondent* *Kevin Babu - Court Assistant*