Jungle Macs (epz) Limited & 4 others v Sidian Bank Limited & 1 other

2. The application is supported by the supporting affidavit sworn by Patrick Kimani Wainaina 22.11.2024. The applicants raise questions relating to the procedure of the exercise of statutory power of sale by the 1st respondent. 3. The 1st defendant/ respondent opposed the application through a replying affidavit sworn by its senior legal officer, Jackline Ndung’u on 20.12.2024. Its main contention is that the debts are not disputed, it has the right to proceed with the sale of the securities to recover its outlay and the applicants have not met the threshold for the grant of the injunctive orders. Background 4. In brief, the background is that the 1st, 4th and 5th plaintiffs applied for and were advanced various loan facilities, detailed below: 1. USD 1,500,000 via letter of offer dated 13.4.2019 to finance working capital requirements. Secured by among others registration of a third-party charge over LR No. 4953/2947 registered in the name of the 2nd plaintiff. 2. USD 1,500,000 via letter of offer dated 24.6.2019 for a discount Macadamia Export Bills to finance working capital 3. KES. 4,098,756 to the 4th plaintiff via letter of offer dated 5.8.2020 to facilitate issuance of a performance guarantee; 4. Renewal of USD 1,500,000 loan facility advanced to the 1st plaintiff via letter dated 12.10.2020 to finance working capital requirements; and 5. Renewal of loan facility of USD. 1,500,000 advanced to the 1st plaintiff via letter of offer dated 23.11.2021 to finance working capital requirements. 5. Facilities (1)-(4) were fully paid. According to the 1st defendant, facility (5) is in default. 6. According to the plaintiffs, the 1st defendant failed to acknowledge some of the payments made by it towards offsetting the facility. The 1st plaintiff encountered an unforeseen financial setback in August 2023. The 2nd plaintiff reached out to the 1st defendant to in December 2023 to initiate discussions regarding a structured payment plan to ensure the 1st plaintiff’s accounts were not affected including reconciliation of the accounts which in their analysis was not tallying with the letter of offer and had been paid in full. 7. A dispute ensued after the plaintiffs learned that the 1st defendant had advertised the charged properties for sale by public auction slated for 28.11.2024 on the Daily Nation on 11.11.2024. This was the precursor to this claim by the plaintiffs lodged on 22.11.2024. Conditional order of 19.10.2024 8. On 27.11.2024, the court issued a conditional order to the effect that the auction slated for 28.11.2024 be and is hereby suspended on condition that the plaintiff pays to the bank Kshs. 10,000,000/- before 10:00 A. M. 28.10.2024. 9. The 1st defendant stated that the plaintiff failed to comply with the conditional order of injunction issued on 19.10.2024 and the defendant’s therefore proceeded to realize the securities. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7175/eng@2026-04-16 2

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Submissions 10. On 26.2.2025 and 23.7.2025, the court directed the parties to file their respective submissions. The 1st respondent filed written submissions dated 8.4.2025. However, the applicants’ submissions were not traced on the Judiciary’s case tracking system (CTS) as the court was in the course of preparing the ruling. 11. The 1st respondent urged the court to dismiss the application with costs. Analysis and Determination 12. I have considered the motion, the rival affidavits and the 1st defendant’s submissions. The issue is whether the application is merited. 13. I note from the record that the claim has been originated through a notice of motion. The plaint is presented as an annexure to the application appearing at page 116 to 122. 14. It may be argued, however, that a notice of motion may originate a suit. 15. Looking closely, the motion is brought primarily under Order 40 of the Civil Procedure Rules. It is also anchored on Section 12 of the Matrimonial Property Act, Sections 90 and 96 of the Land Act, Sections 10, 33 and 44 of the Banking Act, Sections 22, 63 (c) of the Civil Procedure Act, Order 11 Rule 3 (2) (d) of the Civil Procedure Rules and Rule 12 of the Auctioneers Rules. Permanent injunction 16. The motion seeks interlocutory reliefs in the nature of a permanent injunction and an order to compel the 1st respondent to produce a current valuation report in respect of the subject properties. 17. The way that the motion is couched makes it extremely difficult to entertain it as an interlocutory application because the question of whether to grant a permanent injunction ought to be determined after hearing the parties. 18. “A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected.” Kenya Power & Lighting Ltd v Sheriff Molana Habib [2018] eKLR An order to compel provision of current valuation reports 19. The applicants raise issues relating to the procedure of the exercise of statutory power of sale by the 1st respondent. 20. The applicant’s seek an order to compel the 1st respondent to provide current valuation reports in respect of the properties. 21. The 1st respondent deposed that in compliance with section 97 of the Land Act, ensured that valuation of the properties offered as security was undertaken by qualified valuers. It exhibited the valuation reports as JN-23 and JN-24. 22. The 1st respondent exhibited the valuation reports dated: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7175/eng@2026-04-16 3

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23. 1. 3.9.2024 in respect of LR No. 4953/2947 Makongeni, Thika, Kiambu County reflecting a forced sale valuation of Kshs. 75,000,000/-. 2. 28.10.2024 in respect of LR No. 29271 (Part) Villa No. 24, Garden City Residences, Nairobi City County reflecting a forced sale value of Kshs. 22,500,000/-. In Joan Wangui Karanja v Stanbic Bank Limited [2020] eKLR held that: “ Under section 97 of the Land Act, the chargee has a duty of care to the chargor to obtain the best price reasonably obtainable at the time of sale and in that regard, it is required to ensure a forced sale valuation is obtained. This provision in reinforced by Rule 11(b)(x) of the Auctioneers Rules which requires that a professional valuation of the reserve price be carried out not more than 12 months prior to the proposed sale. The collective effect of these provisions is that the Bank is required to obtain a forced sale value of the property within the year of the intended sale.” 24. The applicants challenge the public auction of the property which was slated for 28.11.2024. The valuation reports produced by the 1st respondent were issued in September and October 2024. The properties were both inspected on 29.8.2024. 25. The respondent has produced recent pre-sale valuations. 26. Therefore, there is no basis for the order to compel it to produce current valuation reports at this juncture. Up- to-date statements of accounts enumerating the current credit and debit entries of the 1st Plaintiff/ Applicant accounts in their books. 27. The respondent exhibited copies of the loan and current account statements showing the loan arrears annexed to the replying affidavit as JN-25 and JN-26. The loan balances are: 1. Trade finance loan 1 -Kshs. 29,865,792.84 2. Trade finance loan 2 -181,380,460.06 3. Trade finance loan 3 -8,232.752.66 4. Current account KES. 349,657.32 5. Current account USD 440,014.69 28. The statements are dated 29.11.2024, thus up-to-date and they contain credit and debit entries 29. Hence, there is no basis for the order to compel it to produce up- to-date statements of accounts enumerating the current credit and debit entries of the 1st plaintiff/ applicant accounts in their books at this point. Disposal 30. In conclusion, the court makes the following orders: 1. The application dated 22.11.2024 is dismissed. 2. Costs of the application are awarded to the 1st respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7175/eng@2026-04-16 4

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3. The applicant to re-submit the plaint as a stand-alone pleading together with the list of witnesses, the witness statements and the list and bundle of documents for assessment and payment of the appropriate filing fees within 14 days from the date of this ruling. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 16TH DAY OF APRIL, 2026 ------------F. GIKONYO M JUDGE In the presence of: Maina for Applicant Kipkoech for defendant CA - Ivan/Aggrey https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7175/eng@2026-04-16 5

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