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MagistrateAllowedCivil Suit No E495 of 2025· [2026] KEMC 813 (KLR)

Wasike v Co-operative Bank of Kenya & another (Civil Suit E495 of 2025) [2026] KEMC 813 (KLR)

Magistrates' Court
5 February 2026
4,356 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Bungoma court stopped a bank from selling a borrower's land because the claimed debt looked inflated and no valuation was done before advertising the sale.

What this practically means

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Executive summary

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The Applicant, who had charged land parcel East Bukusu/South Kanduyi/18875 to secure facilities of Kshs 1,500,000 and Kshs 4,000,000 from the 1st Respondent, moved the court under a Certificate of Urgency seeking an interlocutory injunction restraining the Respondents from attaching and selling the suit property in exercise of the statutory power of sale. He alleged non-service of statutory notices under sections 90 and 96(2) of the Land Act and Rule 15(d) of the Auctioneers Rules, absence of a forced valuation under section 97 of the Land Act, and an excessive, interest-inflated demand of over Kshs 8,000,000. The 1st Respondent, through its Legal Manager, countered that notices were duly served, the debt stood at about Kshs 7.3 million, and the Applicant was in breach, arguing that a dispute as to amount is no ground for injunction and that granting the orders would amount to the court rewriting the contract. Applying the Giella/Nguruman principles, the court found service of notices proved and unimpeached, but held that the unexplained excessive sum and the absence of evidence of forced valuation shifted the evidential burden to the 1st Respondent, establishing a prima facie case. Loss of the matrimonial home would destroy the subject matter, so damages were not an adequate remedy despite the Respondent's financial capacity, and the balance of convenience favoured the Applicant. The application was allowed with mutual restraints, Order 11 compliance within 14 days, no adjournments, and costs to abide the main suit.

Key legal issues

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01

Whether the Applicant established a prima facie case

Holding

Yes - the unexplained excessive sum demanded (over Kshs 8,000,000 on a Kshs 4,000,000 facility) and absence of evidence of forced valuation shifted the evidential burden to the 1st Respondent

Reasoning

The Applicant alleged the claimed sum of over Kshs 8,000,000 was double the Kshs 4,000,000 principal and beyond permissible interest rates, and that no forced valuation was done before advertisement. Service of statutory notices was proved by affidavit of service and not impeached, so that ground failed. But the Respondents did not address valuation or the interest computation, shifting the evidential burden to them and establishing an apparent infringement of the Applicant's rights.

p. 7
02

Whether the Applicant would suffer irreparable injury not compensable by damages

Holding

Yes - sale would destroy the subject matter (the matrimonial home) and render any later remedy academic

Reasoning

Although the loss was quantifiable and the 1st Respondent was a financial institution capable of paying damages, the court relied on Halsbury's definition of irreparable injury and Mosioma to hold that destruction of the subject matter justifies an injunction even where damages are theoretically available, since a later injunction after sale would be academic.

p. 8
03

Whether the balance of convenience favours the Applicant

Holding

Yes - having satisfied the first two limbs, the balance of convenience inevitably tilts in his favour

Reasoning

Relying on Paul Gitonga Wanjau, the court held that where an applicant has a strong case on the merits and faces significant irreparable harm, maintaining the status quo favours granting the injunction; the first two limbs having been met, the third followed automatically.

p. 8
04

Whether the general rule against courts rewriting contracts bars the injunction

Holding

No - the rule cannot prevent injunctive relief where circumstances demand, e.g. where a contract is unconscionable

Reasoning

The 1st Respondent argued that granting the orders would amount to rewriting the loan agreement. The court acknowledged the general rule but held it is not absolute; in some instances, such as unconscionable contracts, a court may intervene, so the rule cannot bar an injunction to prevent performance where circumstances demand.

p. 4

Legal principles established

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  • An injunction may issue where the amount claimed by a chargee is excessive, notwithstanding that a mere dispute as to amount does not normally justify one
  • Forced valuation of charged land before advertisement for sale is a statutory obligation on the financier, and absence of evidence of it shifts the evidential burden to the chargee
  • Loss of the suit property would destroy the subject matter, so damages are not an adequate remedy notwithstanding the chargee's financial capacity

Court orders

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  1. 1.Pending the hearing and determination of the suit inter-parties, the Defendants/Respondents are restrained from attaching, selling or in any manner dealing with land parcel East Bukusu/South Kanduyi/18875 in exercise of statutory power of sale
  2. 2.Pending the hearing and determination of the suit, the Plaintiff/Applicant is restrained from dealing with land parcel East Bukusu/South Kanduyi/18875 in any manner inimical to the 1st Defendant/Respondent's statutory power of sale
  3. 3.Parties to comply with Order 11 of the Civil Procedure Rules within 14 days
  4. 4.No adjournments will be entertained during the hearing of the matter
  5. 5.Costs of the Application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 40(1); Order 11
  • Land ActSections 90, 96(2), 97, 89(2)
  • Auctioneers Rules 1996Rule 15(d)
  • Constitution of KenyaArticle 40

Cases cited (14)

  • Palmy Company Limited v Consolidated Bank of Kenya
    (2013) eKLR
  • Giella vs. Cassman Brown & Co. Ltd
    [1973] EA 358
  • National Bank of Kenya Limited v Pipeplastic Samkolit (K) Limited
    (2002) 2 EA 503
  • Marple Brooks Projects Company Limited & Another v I & M Bank Limited
    (2019) eKLR
  • Sammy Japheth Kavuku v Equity Bank Limited & Another
    (2014) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Lucy Nungari Ngigi & 4 Others -vs- National Bank of Kenya Limited & Anor
    (2013) eKLR
  • East African Industries vs. Trufoods
    [1972] EA 420
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
  • 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
  • Elizabeth Academy- Karen Limited
  • Scholastica Nyaguthii Muturi vs Housing Finance Co of Kenya Limited
    HCCC No 10 of 2010
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 40(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, "Wasike v Co-operative Bank of Kenya & another (Civil Suit E495 of 2025) [2026] KEMC 813 (KLR)", Case Analysis (2026). Civil Suit No E495 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/813/eng@2026-02-05

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