Monicah Wanjiru Chege v Solomon Njoroge Njau & 3 others

f. That Officer Commanding Gatongora Police Station to ensure compliance with the orders above. g. That the Plaintiff/Applicant be awarded costs of this application. h. Any other orders that the Honourable court may deem fit and just. 2. The Application is based on the grounds as set out on its face and the supporting Affidavit of Monica Wanjiru Chege sworn on the instant date. The Applicant holds that she received an eviction notice dated 27th January, 2023 from Mungai Kuria Advocates LLP which was addressed to James Nganga Kahura, the 2nd Respondent asking him to vacate the suit property namely Land Title No.Ruiru East Block 1/2020 and when she inquired about it, the said advocate informed her that his client, Solomon Njoroge Njau, the 1st Respondent, had purchased the suit property through a public auction which was conducted on 16th June, 2022. According to the Applicant, the suit property is the home where she resides with her children and they are at risk of being rendered homeless and destitute if the orders are not granted. 3. The Applicant confirms that she guaranteed the 2nd Applicant a loan facility which was advanced to him by the 3rd Respondent using the suit property as security in the year 2016 and was surprised to find out that the land had mysteriously been transferred into the name of the 2nd Applicant without her knowledge which amounts to an illegal transfer shrouded by serious acts of fraud and forgery by the Defendants as she was only a guarantor to loan advanced to the 2nd Defendant/Respondent by the 3rd defendant as evidenced by annexure “MWC5” being a copy of Memorandum of Understanding between herself and the 1st Defendant/Respondent. She goes on to aver that in 2016, she was notified by the 3rd Respondent that the 2nd Respondent had defaulted on his loan repayments, and she proceeded to make deposits of Kshs. 300,000/=, Kshs. 900,000/= and Kshs. 145,000/= into the 2nd Respondent’s Account No.048000013400 at Family Bank on 16th August,2017, 23rd August, 2017 and 10th October, 2017 respectively in a bid to save her property. 4. The Applicant contends that although Valuation of the suit property was done for the purposes of guaranteeing the said Defendant/Respondent’s loan in 2016, another Valuation was recently done for purposes of the auction and the suit property, exactly the same amount in 2016 when the 2nd Respondent took the loan. it is the Applicant’s contention that in the interest of justice and fairness, an order of injunctio0n do issue to stop the eviction as she stands to suffer irreparable loss, damage and mental anguish. 5. The Application was opposed through Replying Affidavit sworn by Sylvia Wambani, the Legal Services Manager of the 3rd Respondent on 3rd April, 2023, wherein she contends that the issue of stopping the sale is res judicata as the same was already determined in the case of Ruiru SPMC No. 63 of 2019. The deponent has averred that in 2016, the 2nd Applicant applied and was advanced a loan facility of Kshs.7,500,000/= which was secured over a Charge instrument of the suit property for which he availed a Sale Agreement and Title Deed to confirm that he was the registered owner of the same. 6. The deponent then goes on to state that the 2ndRespondent defaulted in the loan repayments and was issued with Demand Notices, Ninety (90) days Statutory Notice dated 21st April, 2017, a forty (40) days’ Notice dated 21st July, 2017, the Valuation Report of the property which was done by Liaison Valuers on 3rd March, 2022, a forty-five (45) day Redemption Notice and Notification of sale both dated 27th May, 2022, alongside a Daily Paper Advertisement. That pursuant to that, the suit property was eventually sold to the 1st Respondent herein as per the Certificate and a Memorandum of Sale, and therefore the equity of redemption was extinguished. The 3rd Respondent contends that it followed https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19276/eng@2025-10-01 2

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the due procedure over the suit property, hence the Applicant does not have prima facie case to warrant the orders sought. It further blames the Applicant for coming to court with unclean hands and being guilty of non-disclosure and urges that the application be dismissed. 7. The 1st Respondent also filed a Replying Affidavit and submissions. However, the same were expunged from the court record on 26th May, 2025 after the 1st Respondent failed to pay for the said pleadings despite being granted numerous chances to do so, and led to the delay in determining this application. Analysis and Determination 8. 9. To determine this application date 21st February, 2023, I have read through the Supporting Affidavit, Replying affidavit and submissions filed by the parties, the Court finds the issues for determination being:a. Whether a temporary injunction can issue to restrain the Defendants/Respondents, their employees, customers, servants, representatives and agents or whomsoever acting on their behalf from commencing, proceeding with or causing the sale, attachment, auction, transfer, vesting, eviction/removal of the Plaintiff/Applicant or her family members from land Title No.Ruiru East Block 1/2020 or conducting any dealings or proceedings in regard thereof pending the hearing and determination of the main cause. b. Whether the Officer Commanding Gatongora Police Station should ensure compliance of any orders. On the issue of a temporary injunction, this Court is required to determine whether the principles already codified by authoritative pronouncements in the precedents have been met. Since the Giella Case (supra), in an interlocutory injunction application, an Applicant is required to satisfy the following:a. To establish his/her case only at a prima facie level. b. Demonstrate irreparable injury if a temporary injunction is not granted; and, c. Allay any doubts as to (b) by showing the balance of convenience is in his/her favour. (See case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014]eKLR) 10. It is also established that these three(3) conditions and stages are to be applied as separate, distinct and logical hurdles which an Applicant is expected to surmount sequentially (see Case of Kenya Commercial Finance Co. Ltd v Afraha education Society, [2001] Vol 1EA 86). It is not enough for a party to establish the existence of a prima facie case, for an interlocutory injunction to issue. A party is also required to demonstrate the injury likely to be suffered, that is, if the same will be irreparable in the event the injunction does not issue. In this case, it must be shown that the damages recoverable in law is adequate remedy and the Respondent is incapable of paying the same. And if a prima facie case is no established, there will be no need to consider the other requirements. 11. The first requirement an Applicant is required to establish is a prima facie case. What constitutes a prima facie case was discussed and considered by the Court of Appeal in the case of Mrao Limited v First American Bank of Kenya Ltd & 2 Others [2003]KLR 125 which held that:“ In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19276/eng@2025-10-01 3

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12. In this case, having considered the sequence of events, this Court finds that the Applicant has admitted that the 2nd Respondent took out a loan facility from the 3rd Respondent which loan she guaranteed him. However, upon going through the Charge instrument and letter of offer filed by the 3rd Respondent, the Court finds no mention of the Applicant’s name therein. It is noted that the title deed used as security was registered in the name of the 2nd Respondent, and thus, it was not a third party charge. 13. It is also noted that the Applicant has claimed that the suit property was transferred into the names of the 2nd Respondent illegally through fraud and forgery. However, she had not availed any evidence to confirm the claim of fraud or forgery as these are criminal acts which ought to have been reported to the police or any crime investigations agency for investigations and action. Further the Court has gone through the Sale Agreement dated 30th April, 2016 between the Applicant and the 2nd Respondent for the sale of the suit property, a title deed in the name of 2nd Respondent and finds that the Applicant has not provided any evidence to confirm the same are forged documents. The Applicant also claim that she was not aware of the public auction and yet a perusal of the Attendance List of Watts Auctions of 16th June, 2022 shows that she was present during the auction together with the 2nd Respondent as they appear as listed under entry No.8 and 5 respectively. She therefore cannot claim she had no knowledge of the auction. 14. In view of the above-findings, it is clear that the Applicant has been shown to have no interest over the suit property, which was used as security for a loan facility which the 2nd Respondent defaulted in repayment resulting into the 3rd Respondent exercising its Statutory Power of Sale. The 3rd Respondent together with the 4th Respondent followed the due process in terms of issuing the requisite notices, valuation, advertisements and eventually the sale of the suit property. The court confirms that the 1st Respondent is an innocent purchaser for value and the court finds no justifiable reasons to interfere with the sale or even the intended eviction. 15. It is trite that an Agreement for Sale entered into by a third party as a result of the exercise of a Chargee’s Power of Sale is valid. In the case of Bomet Beer Distributors Ltd & Another v Kenya commercial Bank Ltd and 4 Others[2005], the court found:“ …What is clear is that once a property has been knocked down and sold in a public auction by a Chargee in exercise of its Statutory Power of Sale, the equity of redemption of the Chargor is extinguished. The only remedy for the Chargor who is dissatisfied with the conduct of the sale is to file suit for general or special damages”(emphasis the Defendant’s). 16. Given that the Applicant has not established that she has a prima facie case, the court finds there is no need to address the other two conditions as guided by the Court of Appeal decision in the case of Kenya Commercial Finance Co. Ltd v Afraha Education Society (2001) IEA 86 cited by Gitumbi, J with approval in the case of Joseph Wambua Mulusya v David Kitu & Another (2014) eKLR, where it observed as follows: “ The sequence of steps to be followed in the enquiry into whether to grant an interlocutory injunction is sequential so that the second condition can only be addressed if the first one is satisfied”. 17. For those reasons the court finds that the Notice of Motion application dated 21st February, 2023 lacks merits and is thus dismissed with costs to the 3rd Respondent. As for the 1st Respondent, it is not entitled https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19276/eng@2025-10-01 4

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to costs of filing his pleadings since the same were expunged from the court records for lack of payment of requisite court fees for the same. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 1ST DAY OF OCTOBER ,2025. D. O. CHEPKWONY JUDGE In the presence of: M/S Mulama holding brief for Mr. Nganga counsel for Plaintiff No appearance by and for Respondents Court Assistant – Martin/Sakina https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19276/eng@2025-10-01 5

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