Eugene Ojwang Were v Absa Bank & 1 other

B) The auctioneers’ redemption notice of 45 days required under rule 15 of the Auctioneers’ Rules was not given; c) That no valuation was done of the mortgaged property as required in law; and d) That the applicant has faithfully repaid his loan. 5. According to the applicant, sale of his property in the circumstances outlined by him would be a deprivation of property without compensation contrary to article 40 of the Constitution. He took the view that, his right to property will be taken away without due process, which does not only establish a prima facie case with high chances of success, but also that he will suffer irreparable damage that cannot be compensated by damages. Giella vs. Cassman Brown [1973] EA 358, Mrao case and Pius Kipchirchir Kogo vs. Frank Kimeli Tenai [2018] KEELC 2424 (KLR) 6. In his submissions he argued that lack of statutory notices or proper statutory notices as well as failure to value the mortgaged property before sale are serious issues which warrants to be canvassed in full hearing, thus, constituting a proper basis for the issuance of an injunction. Mbuthia vs. Jimba Credit Finance Corp & Ano [1998] KLR 1. 7. He summed up that, in light thereof, the balance of convenience would tilt in his favour. 8. He therefore, urged the court to grant him an injunction as no prejuidice will be suffered by the respondents. 9. The application was opposed through the replying affidavit sworn by Samwel Njuguna which traversed in seriatim each and every allegation made by the applicant in his supporting affidavit. Their opposition was also bolstered through the written submissions filed herein. 10. According to the respondents, all statutory notices were given as by law required. 11. The three months’ statutory notice under section 90 of the Land Act and a demand for payment of the sum due were given on 24.6.24 and transmitted to the applicant’s registered email address on the same date. The notice as well as transmission to the applicants registered email address have been exhibited (cite annexure number). 12. The respondent further urged that the 40 days’ notice of intention to sell was given on 25.9.24 and was posted to his address as well as transmitted to his registered email address on the same date. The postal receipt and transmission to email are annexed. (cite annexure number). 13. In addition, the 45 days’ redemption notice under the Auctioneere Rules dated 17.12.24 was duly and personally served upon the applicant on 19.12.24. An affidavit of service of the said notice has been annexed. (cite annexure number). 14. The property was subsequently advertised for sale in the Nation Newspaper on 3.3.25 and later on 17.3.25. 15. That the advert smoked the applicant from his slumber and came to court through this proceedings. 16. The respondent lamented that even after the applicant got a temporary reprieve from the coutrt, he did not comply with the orders of the court to pay a sum of KES. 2,000,000 within 30 days as a condition for rescheduling the planned public auction. 17. The respondents equated the applicant with a charger who is running away from his obligations to repay the loan and should therefore not receive any redress from the court. They also accused him of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19253/eng@2025-12-18 2

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coming to court not with clean hands because it is utterly false claims that he has faithfully repaid the loan. Machakos HCCC NO. 215 OF 2008, Lenaola J (as he then was). 18. The respondents posit that they have the right to exercise their statutory power of sale as it has fell due and exercisable. The right should not be stopped on an application by a debtor who is clearly in default. They stated that the debt is admitted and notice required of the law were duly issued. They sought courts to exercise elevated caution in a request to stop exercise of the statutory power of sale in sucg circumstances. Mrao case, Yusuf Abdi Ali Co Ltd vs. Family Bank Limited [2014] eKLR 19. In their analysis, relevant notices were duly given through correct address (Emusa Global Ltd vs. HFCK [2014] eKLR) and acknowledged by the applicant. Therefore, they have discharged their burden of proof and the injunction should not issue. Abel Omuom vs. KCB [1996] eKLR. 20. They opine that if this matter is delayed further, there is high likelihood of the debt outstripping the value of the mortgaged property-something the court should avoid. Andrew Muriuki vs. Equity Bank [2006] eKLR. 21. To them, the applicant has not come to court with clean hands and should be denied the equitable relief of injunction. Caliph Proprties Ltd vs. Barbel Sharma [2015] eKLR. 22. They urged the court to dismiss the application. Analysis and Determination 23. The issue at hand is: whether an injunction should issue to restrain exercise of the statutory power of sale by the charge. 24. The court takes a wider view of justice as envisioned in the Constitution; substantive justice- whilst asking the traditional questions stated in Giella vs. Cassman Brown: whether the applicant has established a prima facie case with high chances of success; will suffere irreparable damages not compensable by damages; and in the event of doubt, where the balance of convenience lie. 25. The applicant claimed that he has faithfully repaid the loan. He did not back his claims with any evidence. He also admitted the debt except he challenged the sale on account of lack of the requisite notices. 26. The evidence adduced by the bank show that all the relevant statutory notices were given and transmitted to the applicant through his postal and email addresses. Some were served upon him in person. See affidavit of service for the redemption notice. 27. The aourt is aware of the claim by the applicant that the statutory notice was addressed to the wrong address-6129-00300 instead of 6120-00300. But, the evidence adduced by the bank shows that the statutory notice under section 90 of the Land Act as well as the demand notice thereof were transmitted to the applicant to his registered email and correct postal address. The applicant is simply trying to capitalize on the address on the statutory notice without reference to the fact that the same was transmitted to him together with the demand latter both dated 26.6.2024. The demand notice bore the correct address. This is simply an error on the address but did not affect service of the notice upon him. Such error does not go to the root of the notice if the notice was properly transmitted and or served. 28. Thus, in these circumstances, the applicant’s assertions that he repaid the loan faithfully as well as that he was not given the relevant statutory notices are utterly false. These incidents detracts completely from good faith and militate against any claim of prima facie case. accordingly, I find that the applicant has not established any prima facie case for a grant of an injunction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19253/eng@2025-12-18 3

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29. Where a prima facie case has not been established, rarely will the applicant prove that he will suffer irreparable damages especially in a relationship which provides for the remedy of statutory power of sale by the chargee. A lawful exercise of the statutory power of sale by a chargee does not lead to deprivation of property without compensation under article 40 of the Constitution. 30. Similarly, in the circumstances of this case, the balance of convenience tilts towards denying the relief. Conclusion and orders 31. Accordingly, the application is dismissed with costs to the respondents. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 18.12.25 -----------------F. GIKONYO M JUDGE In the presence of: Mbira for Kimiti for defendants Ms Ndeda for Nzioka for Plaintiff CA Kinyua https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19253/eng@2025-12-18 4

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