Barasa & another v Kapematt Capital Ltd & another (Civil Case E079 of 2025) [2025] KEMC 381 (KLR)
The bottom line
#A Bungoma court temporarily stopped a bank from auctioning a family's land, but only for six months and only if the borrowers push the case to hearing quickly.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case
Yes - unresolved questions on service of statutory notices on the registered owner, valuation, and the in duplum rule established a prima facie case.
The court noted the statutory notice under section 90(1) of the Land Act was served only on the 1st Plaintiff via WhatsApp, raising doubt whether the registered owner (2nd Plaintiff) should have been served. Valuation figures predated the sale, service of the May 2024 notice was disputed, and contradictory affidavit evidence on amounts owed raised the in duplum rule. These issues could only be resolved at full trial and sufficed to show an apparently infringed right.
Whether the Applicants would suffer irreparable injury
Yes - the suit property could be lost permanently if auctioned, and damages would not necessarily be adequate.
The court found the intended sale would mean the 2nd Applicant may never recover her suit property. Associating itself with Ringera J's obiter in Waithaka and with Joseph Siro Mosioma, it held damages is not an automatic remedy and a party cannot be condemned to damages in lieu of a crystallised right, so the loss of the property could be irreparable.
Balance of convenience
It tilts in favour of the Applicants given they satisfied the first two conditions.
Following Paul Gitonga Wanjau, the court reasoned that where an applicant has a strong case on the merits or faces significant irreparable harm, the court seeks to maintain the status quo, and therefore the balance of convenience favoured the Applicants.
Whether the statutory power of sale and compliance with procedure should be determined at interlocutory stage
No - such issues have the potential to dispose of the main suit and must await full trial.
The 1st Defendant urged the court to determine whether its right of sale had accrued and whether procedure was complied with. The court, citing Airland Tours and Lucy Nungari Ngigi, declined to make definitive findings on contradictory affidavit evidence, holding the court's duty at the interlocutory stage is only to assess whether a prima facie case exists.
Legal principles established
#- At interlocutory stage, the court should not make conclusive or definitive findings of fact or law on contradictory affidavit evidence or disputed propositions of law.
- An interlocutory injunction applicant must sequentially establish a prima facie case, irreparable injury, and balance of convenience.
- It is not an inexorable rule that where damages may be an appropriate remedy an interlocutory injunction should never issue.
- A party cannot be condemned to take damages in lieu of a crystallised right protectable by injunction.
Court orders
#- 1.Pending hearing and determination of the suit, the Defendants/Respondents are restrained from disposing of, auctioning, offering for sale and/or alienating the suit property
- 2.Pending hearing and determination of the suit, the Plaintiffs/Applicants are restrained from dealing with the suit property in any manner likely to defeat the Defendant/Respondent's statutory right of sale
- 3.Applicants to file and serve all documents necessary for readying the suit for hearing within 14 days, upon which Defendants have 14 days to comply
- 4.Matter to be mentioned on 22nd May 2025 to fix a hearing date
- 5.The injunction shall not last for more than six months unless extended by the court
- 6.If Plaintiffs fail to comply as directed, the injunction granted shall lapse without further reference to the court
- 7.Costs shall be in the main suit
- Jurisdiction invoked
- Sections 3, 3A, 1A, 1B and 63(e) of the Civil Procedure Act; Order 40 and Order 51(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barasa & another v Kapematt Capital Ltd & another (Civil Case E079 of 2025) [2025] KEMC 381 (KLR)", Case Analysis (2025). Bungoma CMC CC. No. E079 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/381/eng@2025-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.