Wepukhulu v Sidian Bank Ltd & others (Civil Suit E052 of 2026) [2026] KEMC 553 (KLR)
The bottom line
#A Bungoma court allowed a lender to continue with the sale of charged land because the borrower failed to prove his claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case for an interlocutory injunction
No. The uncontroverted evidence showed the loans were advanced with the Applicant's consent, evidenced by charges, default had occurred and the statutory power of sale had crystallised.
The court applied the Mrao definition of a prima facie case. The Applicant disputed the amount owed and alleged unconsented further advances, but the Respondent's loan account statement and consent to the further charge remained uncontroverted. The court warned itself against making definitive findings at interlocutory stage but held it could make findings on uncontested issues. The Applicant failed to show an apparent infringement of a right.
Whether the in duplum rule under section 44A of the Banking Act was breached
No. Even accepting the Applicant's repayments, the sum claimed did not contravene the in duplum rule.
The Applicant claimed the debt ballooned from Kshs. 1,000,000 to Kshs. 3,471,145.45 in breach of the in duplum rule. The court found the loans actually advanced totalled Kshs. 2,500,000 and Kshs. 3,000,000 secured with the Applicant's consent, and the outstanding amount on the statement did not exceed the principal, so no breach was shown.
Whether the court could order repayment by monthly installments of Kshs. 50,000
No. Restructuring of a loan is a matter for the parties' consent; courts cannot rewrite lawful contracts.
The court held that directing the lender to accept agreed installments would amount to rewriting the loan agreement. Absent proof of illegality in the loan agreement, the court lacks power to impose a repayment schedule; that is a preserve of negotiations between lender and borrower.
Whether the alleged undervaluation of the suit property justified injunctive relief
No. Mere apprehension of undervaluation, without cogent evidence, does not establish infringement of section 97 of the Land Act.
Relying on Palmy Company Limited v Consolidated Bank of Kenya Limited, the court held the onus lies on the applicant to establish on a prima facie basis that the lender breached its statutory duty of care in valuation. The Respondent indicated a forced valuation would be done before auction, and the Applicant led no evidence of undervaluation.
Legal principles established
#- A dispute as to the amount outstanding is not, by itself, a basis for an injunction to restrain a lender from realising its security unless the amount claimed is excessive per the agreement
- A party alleging undervaluation of charged property must lead evidence proving undervaluation on a balance of probabilities
- Courts cannot rewrite a lawful contract voluntarily entered into between parties
- The three Giella/Nguruman injunction pillars must be surmounted sequentially; failure on the first renders the rest moot
Court orders
#- 1.The Application dated 09th February 2026 is dismissed
- 2.Costs of the application awarded to the 1st Respondent
- Jurisdiction invoked
- Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules; sections 82(3) and 97 of the Land Act (2012); section 44A of the Banking Act; sections 1, 1A, 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wepukhulu v Sidian Bank Ltd & others (Civil Suit E052 of 2026) [2026] KEMC 553 (KLR)", Case Analysis (2026). Civil Suit No E052 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/553/eng@2026-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.