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MagistratePartially AllowedBungoma CMC CC. No. E079 of 2025· [2025] KEMC 381 (KLR)

Barasa & another v Kapematt Capital Ltd & another (Civil Case E079 of 2025) [2025] KEMC 381 (KLR)

Chief Magistrate's Court (Bungoma)
17 April 2025
3,388 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicants, by a Notice of Motion dated 27th February 2025 under the Civil Procedure Act and Order 40 of the Civil Procedure Rules, sought an interlocutory injunction restraining the Defendants from disposing of, auctioning, offering for sale or alienating LR. No. BOKOLI/CHWELE/3258, registered in the name of the 2nd Applicant, which had been advertised for auction on 7th March 2025. The property was charged as security for a Kshs. 300,000/= loan advanced to the 1st Applicant. The Applicants complained that statutory notices under sections 90(2) and 96(2) of the Land Act were not served, that no current valuation was conducted, and that the sum sought (Kshs. 488,189/=) was absurd given Kshs. 313,000/= already repaid. The 1st Defendant, through its Loan Recovery Officer Stephen Ashubwe Aseka, opposed the application, asserting full compliance with statutory procedure. The court declined the Defendant's invitation to determine the accrued right of sale and compliance at the interlocutory stage, holding such issues could dispose of the suit and could not be resolved on contradictory affidavit evidence. Applying the Giella/Nguruman principles, the court found the unsettled questions - service of statutory notices on the registered owner, valuation currency, service of the May 2024 notice, and applicability of the in duplum rule - established a prima facie case. It found the possible permanent loss of the property constituted irreparable injury not necessarily remediable by damages, and the balance of convenience favoured the Applicants. The court granted a mutual injunction preserving the status quo, time-limited to six months, with conditions requiring the Applicants to ready the suit for hearing within 14 days failing which the injunction lapses, and directed costs to be in the main suit.

Key legal issues

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01

Whether the Applicants established a prima facie case

Holding

Yes - unresolved questions on service of statutory notices on the registered owner, valuation, and the in duplum rule established a prima facie case.

Reasoning

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.

p. 9
02

Whether the Applicants would suffer irreparable injury

Holding

Yes - the suit property could be lost permanently if auctioned, and damages would not necessarily be adequate.

Reasoning

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.

p. 11
03

Balance of convenience

Holding

It tilts in favour of the Applicants given they satisfied the first two conditions.

Reasoning

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.

p. 11
04

Whether the statutory power of sale and compliance with procedure should be determined at interlocutory stage

Holding

No - such issues have the potential to dispose of the main suit and must await full trial.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Matter to be mentioned on 22nd May 2025 to fix a hearing date
  5. 5.The injunction shall not last for more than six months unless extended by the court
  6. 6.If Plaintiffs fail to comply as directed, the injunction granted shall lapse without further reference to the court
  7. 7.Costs shall be in the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 1A, 1B and 63(e)
  • Civil Procedure RulesOrder 40(1),(2),(3),(4) & (10); Order 51(1)
  • Land ActSections 90(1), 90(2), 96(2)

Cases cited (10)

  • Airland Tours & Travel Limited vs. National Industrial Credit Bank
    Nairobi (Milimani) HCCC No. 1234 of 2002
  • Lucy Nungari Ngigi & 4 Others -vs- National Bank of Kenya Limited & Anor
    Nairobi High Court Civil Case No. 517 of 2014 (eKLR)
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • East African Industries vs. Trufoods
    [1972] EA 420
  • Giella vs. Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
  • Waithaka v Industrial and Commercial Development Corporation
    [2001] eKLR
  • Joseph Siro Mosioma vs. Housing Finance Company of Kenya Limited & 3 Others
    [2008] eKLR
  • Paul Gitonga Wanjau vs. Gathuthis Tea Factor Company Ltd & 2 Others
    [2016] eKLR
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

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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, "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.