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ELCPartially AllowedELC Appeal (Kajiado) - appeal from CM ELC Case No. E146 of 2022· [2025] KEELC 4713 (KLR)

Co-operative Bank of Kenya Limited v Nyalyka Enterprises & Engineering Company Limited (Environment and Land Appeal E001 of 2024) [2025] KEELC 4713 (KLR)

Environment and Land Court
19 June 2025
1,935 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court in Kajiado threw out a borrower's injunction blocking a bank from selling charged land, finding the claim premature and dishonest.

What this practically means

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Executive summary

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The Appellant bank appealed against a ruling of Hon. V. Kachuodho delivered on 10th August 2023 in CM ELC Case No. E146 of 2022, which granted the Respondent borrower a temporary injunction restraining the bank from exercising its statutory power of sale over the charged properties, including LR No. Kajiado/Kaputei-North/50768. The appeal was canvassed by written submissions. The Respondent initially objected that the appeal was filed out of time without leave under Section 79G of the Civil Procedure Act, but the court noted it had already granted leave in a ruling dated 19th December 2023 in ELC Misc. E.012 of 2023. The court identified issues on whether the injunction was properly granted where no steps to realise the securities had been taken, and whether it could issue over a property already sold to a third party. Applying the Giella v Cassman Brown principles, the court held the trial magistrate gave no reasons for her conclusion, that no Section 90 notices or subsequent steps under Sections 94-97 of the Land Act had been taken so no imminent danger existed, that the Respondent failed to establish a prima facie case, irreparable injury not compensable by damages, or the balance of convenience, having defaulted on the loan. The court further found the Respondent dishonest in claiming the sold property was under threat of auction, invoking the clean hands doctrine. Allowing the appeal, the court set aside the ruling and substituted an order dismissing the Notice of Motion dated 19th December 2022 with costs, and awarded the costs of the appeal to the Appellant.

Key legal issues

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01

Whether temporary injunction restraining exercise of statutory power of sale was properly granted

Holding

It was not; no statutory notices under Section 90 of the Land Act or subsequent realisation steps had been taken, so no imminent danger existed and the Respondent failed the Giella conditions

Reasoning

The court found the application premature because the bank had not commenced crystallising its statutory power of sale: no Section 90 notices, no valuation, no advertisement. Without imminent threat the Respondent failed to show a prima facie case with probability of success, irreparable injury, or balance of convenience, having defaulted on the loan.

p. 4
02

Whether injunction could issue over Kajiado/Kaputiei-North/50768

Holding

No; the property had already been sold to a third party (Woof Enterprises Ltd) by private treaty before the suit, so no injunctive relief could issue in respect of it

Reasoning

The court accepted the Appellant's submission that the property had been sold off years before the lower court suit to settle amounts owed. The Respondent's claim that the property was under threat of auction was found dishonest, engaging the clean hands doctrine and disentitling the Respondent from equitable relief.

p. 4
03

Whether the appeal was filed out of time and thus improperly on record

Holding

The objection failed because leave to file out of time had been granted in ELC Misc. E.012 of 2023

Reasoning

The Respondent argued there was no Memorandum of Appeal and no leave to file out of time under Section 79G. The court noted that it had, in a prior ruling dated 19th December 2023, granted the Appellant leave to file the appeal out of time, rendering the objection misconceived.

p. 3

Legal principles established

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  • An injunction will not issue to restrain a borrower's default where the chargor has not demonstrated a prima facie case, irreparable injury not compensable by damages, or the balance of convenience under Giella v Cassman Brown
  • A plaintiff should not be granted an injunction if he does not have clean hands and seeks to derive advantage from his own default
  • A court must give reasons for its conclusions; a ruling without a ratio or supporting reasons is erroneous

Court orders

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  1. 1.The ruling delivered by Hon. V. Kachuodho (PM) on 10th August 2023 in ELC E.146 of 2022 is set aside and substituted with an order dismissing the Notice of Motion dated 19th December 2022 with costs.
  2. 2.The costs of the Appeal shall be borne by the Respondent.

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Land Act, 2012Section 90
  • Land Act, 2012Sections 94-97

Cases cited (7)

  • Ambient Construction v National Bank of Kenya Ltd
    [2019] eKLR
  • Caliph Properties Ltd v Barbel Sharma & another
    [2015] eKLR
  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Eston Mwirigi Ndege & another v Patrick Gitonga Mbaya
    [2018] eKLR
  • Mrao Ltd v First American Bank of Kenya & 2 Others
    [2003] 125
  • Paul Gitonga Wanjau v Gathuti Tea Factory Co. Ltd & 2 Others
    [2016] eKLR
  • Francis J.K. Icatha v Housing Finance Co. Ltd.
    HCC No.414 of 2004
On appeal from
Chief Magistrate's Court, Kajiado (ELC)
CM ELC Case No. E146 of 2022
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act (Section 79G raised; leave to file out of time granted in ELC Misc. E.012 of 2023)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Co-operative Bank of Kenya Limited v Nyalyka Enterprises & Engineering Company Limited (Environment and Land Appeal E001 of 2024) [2025] KEELC 4713 (KLR)", Case Analysis (2025). ELC Appeal (Kajiado) - appeal from CM ELC Case No. E146 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4713/eng@2025-06-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.