Emmanuel Nzole Mutisya v Co-operative Bank of Kenya Limited & 1 other

2. The Applicant swore an affidavit in Support of the Application. He avers that he is the registered owner of the suit property he charged to the 1st Respondent to secure a mortgage facility in the sum of Kshs. 9,450,000/=. He duly serviced the loan for almost 10 years after which he faced financial difficulties occasioned by a harsh economic environment. 3. The Applicant further avers that in May 2025 the 1st Respondent issued a 90-day statutory notice of intention to exercise its statutory power of sale of the suit property to realize its security. Before lapse of the notice period he was served with a Notification of Sale of the suit property dated 15th May 2025 by the 2nd Respondent as instructed by the 1st Respondent. The Notice indicated that the suit property would be sold by public auction on 16th July 2025. Again, before lapse of this notice, the 2nd Respondent issued a 45-days redemption notice also dated 15th May 2025. 4. According to the Applicant, the 2nd Respondent thereafter advertised the suit property for public auction on 16th July 2025. He contends that purported valuation of the suit property in the sums of Kshs. 10,000,000/= and 8,250,000/= in open market and forced sale values respectively are significantly below the true and fair market value thereof. 5. On advice of his Counsel, the Applicant therefore contends inter alia that the Respondents failed to comply with the Provisions of Sections 90(1), 90(2) and 96 of the Land Act thereby invalidating their right of sale of the suit property. 6. The 1st Respondent’s Legal Manager (Florence Njuguna) conveyed her employer’s opposition to the Application vide her affidavit purportedly sworn on 28th July 2025 in reply. She avers that the Applicant is in default of the loan facility and the debt stood at Kshs. 16,604,229.57 as at 21st July 2025. In light of the default, the Applicant is said to have been served with all the requisite statutory notices of sale of the suit property to wit; 90-day notice dated 8th May 2024 and 45-day redemption notice dated 15th May 2025. The Applicant had allegedly failed to regularize the default even after restructuring of the loan at his request. Owing to the 1st Respondent’s internal administrative oversight, however, a fresh 90day notice was inadvertently re-issued on 9th April 2025. According to the 1st Respondent, the second notice was not intended to negate or invalidate the earlier notices and neither does it affect the fact that the Applicant lawfully remains indebted to them in respect of two consolidated loan accounts. 7. The Respondent proposed in the circumstances that the second 90-day notice be admitted and they be allowed to subsequently re-issue the 40-days and 45-days notices upon lapse of the 90-day notice in the event the Applicant fails to make good the debt. 8. The 1st Respondent’s witness further deposes that contrary to the Applicant’s claim the suit property was properly valued, pointing out that the Applicant has not exhibited an independent valuation report in support of the contention of under valuation. 9. Learned Counsel for the parties filed Written Submissions which I have read through against the rival affidavit evidence and the entire record. 10. In Showind Industries v Guardian Bank Limited & Another [2002] 1 EA among other decisions, it has been observed that temporary injunction pending trial is granted very sparingly, and only in exceptional circumstances such as where the Applicant’s case is very strong and straight forward. As an equitable remedy, injunction may be denied where there is misconduct by the Applicant or his equity has been defeated by laches. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4001/eng@2026-03-16 2

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11. In Mohamed Khalid Khashoggi v Equity Bank Limited [2013] it was held that disputed accounts and interest are not a ground for grant of injunction. The same opinion was expressed inter alia in Habib Bank Ag. v POPFNK LTD , Civil Appeal No. 147 of 1989) . 12. It is also the law that irreparable loss may not result to a borrower as any damages were foreseeable owing to voluntary charging of property to the lender ( see Wanjohi v Equity Bank Building Society Limited & 2 Others (2006) eKLR). 13. Determination of injunction applications including mandatory, prohibitory and permanent injunctions were long settled in the often quoted case of Giella v Cassman Brown & Company supra cited in the 1st Defendant’s submissions. The principles are; “ Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience." 14. Case law in Mrao v First American Bank of Kenya Limited & 2 Others (2003) eKLR explains a prima facie case in civil cases as; “ A case which on the material presented, the court or tribunal properly directing itself will conclude that there exists a right which had apparently been infringed by the opposite party as to call for explanation or rebuttal from the latter.” 15. The three limbs above are required to be surmounted sequentially (see Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR). This means that the Applicant has to satisfy each of the three elements to obtain injunction orders. 16. A Prima facie case is established since the statutory notices were admittedly not properly served. The current extent of indebtedness is not also quite known since the last 90-day statutory notice, admitted to be erroneous, was sent on 9th April 2024. Valuation of the suit property cannot, however, be impugned as the Applicant has not tendered an independent expert report discrediting the report exhibited by the 1st Respondent. 17. The Applicant may suffer irreparable loss for violation of the law in sale of the charged property. He may not be compensated in damages for the violation if he eventually succeeds after trial. 18. Although the Applicant admits default, the 1st Respondent cannot lawfully exercise its statutory power of sale on the basis of the faulty notices of sale. The court nevertheless appreciates that the 1st Respondent cannot be prevented from seeking to recover the debt owed to it. 19. The Application is allowed only to the extent that the 1st Respondent is prohibited from selling the suit property on the basis of the issued notices. If the indebtedness persists the 1st Respondent would have to issue fresh notices. 20. The costs of the Application shall be in the Cause. J. M. NANG’EA - JUDGE RULING DELIVERED VIRTUALLY THIS 16TH DAY OF MARCH, 2026. In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4001/eng@2026-03-16 3

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Plaintiff’s/Applicant’s Advocate, Ms Mutua for Mr. Kiio 1st Defendant/Respondent’s Advocate, Mr. Muia for Mr. Laichena The Court Assistant ( Jeniffer). J.M. NANG’EA - JUDGE. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4001/eng@2026-03-16 4

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