Oganga v Equity Bank of Kenya Ltd & another (Land Case Appeal E050 of 2025) [2026] KEELC 3958 (KLR)
The bottom line
#A Kenyan court refused to stop a bank from selling a borrower's land because the borrower admitted being in default and the bank proved it sent all required notices.
What this practically means
#Executive summary
#Key legal issues
#Proof of service of statutory notices before exercise of statutory power of sale
The 1st Respondent discharged the burden of proving service by producing the notices, stating the address used, and producing evidence of postage bearing the Postal Corporation of Kenya stamp; the Appellant, having not filed a further affidavit to counter the deposition on address, could not shift the burden
The court held that the application was interlocutory and no viva voce evidence was required. The Respondent produced the notices and a postal dispatch/stamp dated 10.05.2023. The Appellant filed no supplementary affidavit contesting the address used. The burden lay on the Appellant to show a prima facie case and did not shift to the Respondent.
Entitlement to injunctive relief where default is admitted
An admitted default disentitles a chargor to an injunction restraining the statutory power of sale, absent demonstrated non-compliance with statutory procedure; damages after sale are the remedy
The Appellant did not deny being in arrears. Reliance was placed on Maithya v Housing Finance Company of Kenya and Kihara v Barclays Bank for the propositions that charged property is presumed to have commercial value, risk of loss is inherent in charging, and injunctions will not ordinarily issue against a lawful sale where the borrower is in default.
Extension of time to redeem under Section 104(2) of the Land Act
The appeal did not succeed on this ground; the court found the appeal generally devoid of merit and the Respondent contended the Appellant had failed to take adequate steps to remedy the default
Although the Appellant argued the magistrate failed to consider the statutory prayer for extension of time, the court, having found the notices properly served and the default admitted, found no fault with the trial court's reasoning and dismissed the appeal without making a separate finding under Section 104(2).
Legal principles established
#- On a first appeal, the court is entitled to re-evaluate the pleadings and evidence before the trial court to determine whether a wrong decision was reached
- Where a chargor admits default, an injunction will generally not issue to restrain a mortgagee's statutory power of sale; the borrower's remedy after sale lies in damages
- On an interlocutory application, the applicant bears the burden of demonstrating a prima facie case, and the burden does not shift to the respondent merely because service is denied
- The risk of loss arising through a sale is inherent in the charging process and courts will not ordinarily grant an injunction to stop a lawful sale (applying Kihara vs Barclays Bank)
- He who comes to equity must come with clean hands and good faith
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the 1st Respondent
- On appeal from
- Magistrates' Court (Kisii MCELC No. E021 of 2025)
- E021 of 2025
- Jurisdiction invoked
- First appeal from the subordinate court (appellate jurisdiction of the Environment and Land Court over magistrates' courts in land matters)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oganga v Equity Bank of Kenya Ltd & another (Land Case Appeal E050 of 2025) [2026] KEELC 3958 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal from Original Kisii MCELC No. E021 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3958/eng@2026-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.