Wasike v Co-operative Bank of Kenya & another (Civil Suit E495 of 2025) [2026] KEMC 813 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case
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
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.
Whether the Applicant would suffer irreparable injury not compensable by damages
Yes - sale would destroy the subject matter (the matrimonial home) and render any later remedy academic
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.
Whether the balance of convenience favours the Applicant
Yes - having satisfied the first two limbs, the balance of convenience inevitably tilts in his favour
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.
Whether the general rule against courts rewriting contracts bars the injunction
No - the rule cannot prevent injunctive relief where circumstances demand, e.g. where a contract is unconscionable
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.
Legal principles established
#- 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
#- 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.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.Parties to comply with Order 11 of the Civil Procedure Rules within 14 days
- 4.No adjournments will be entertained during the hearing of the matter
- 5.Costs of the Application to abide the outcome of the main suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.