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4. The Applicant deposed that sometime in 2015, he charged his land parcel number East Bukusu/South Kanduyi/1885 (‘the suit property’) in return for a charge of Kshs. 1,500,000/= and a further charge of Kshs. 4,000,000/= from the 1st Defendant/Respondent (‘the 1st Respondent’). He added that he cleared the initial charge, but the 1st Respondent never discharged the same. 5. Further, the Applicant averred that the alleged failure by the 1st Respondent to discharge the initial charge of Kshs. 1,500,000/= has led to the 1st Respondent seeking an exaggerated sum of money pegged on the initial charge, and the sum of Kshs. 4,500,000/= arising from the further charge. He described the interest sought to be recovered from him by the 1st Respondent as way beyond the permissible interest rates under the law. 6. The Applicant also alleged that the Respondents had not issued him with the relevant notices, and that the suit property had not been valued before it was advertised for sale. 7. It is for the reasons above that the Applicant took the view that the process of exercising the Applicant’s statutory power of sale initiated by the Applicant was illegal and unlawful, thus the need for this court to grant the orders sought to prevent irreparable damage to him since the sale of the suit property would render him and his family homeless. 8. The Applicant further deposed that no prejudice would be occasioned to the Respondents if this court grants the orders sought. 9. The Respondent opposed the instant Application through a Replying Afidavit sworn by Jackson Oire; the 1st Respondent’s Legal Manager, on 24th November 2025. 10. The afiant averred that there were no irregularities regarding the loan facility of Kshs. 4,000,000/= advanced to the Applicant, and that the sum of Kshs. 8,042, 640.83/= sought to be recovered from the Applicant was with respect to the further charge. 11. He also stated that the initial charge was not discharged due to the Applicant’s failure to complete the necessary forms and to comply with the terms of the facility. 12. He further reiterated that the 1st Respondent had complied with all the statutory provisions on repossession of securities thus the 1st Respondent ought to be permitted to exercise their statutory power of sale that has already crystallized. 13. The afiant added that granting the orders sought will be akin to this court rewriting the contract between the parties herein. 14. Further, the 1st Respondent averred that the Applicant was still at liberty to exercise his right of redemption before sale of the suit property. 15. The afiant also averred that the suit and the application do not disclose any triable issue, and that the Applicant had not satisfied the conditions for the grant of an injunction thus this court to dismiss the instant Application. Parties Written Submissions 16. On 25th November 2025, this court directed that the instant Application be canvassed by way of written submissions. 17. The Applicant reiterated in his written submissions that the 1st Respondent never served upon him the relevant notices under section 90 and 96(2) of the Land Act, and that the 2nd Respondent did not serve upon him the redemption notice under Rule 15 (d) of the Auctioneers Rules 1996. He placed https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/813/eng@2026-02-05 2

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reliance on several authorities, including Palmy Company Limited v Consolidated Bank of Kenya (2013) eKLR, for the position that non-service of the relevant notices under the Land Act vitiates the notification of sale and renders any exercise of statutory power of sale initiated through a fiawed process a nullity in law. 18. He also submitted that the Respondents had not done a forced valuation of the suit property before advertising the same for sale, contrary to the express provisions of section 97 of the Land Act. 19. On whether the Applicant had established a prima-facie case with a probability of success, the Applicant submitted that the failure by the Respondents to serve upon him the relevant notices in contravention of the law had discharged this first limb on the grant of injunctive orders. 20. The Applicant further submitted that if the orders sought are not granted, the suit property would be sold by the Respondents, thus causing his family to lose their matrimonial home, which will inevitably cause irreparable injury to them. 21. The Applicant concluded his submissions by stating that the imminent loss of his matrimonial home if the injunctive orders sought herein are not granted tilted the balance of convenience in his favour. 22. The 1st Respondent submitted that the Applicant had not demonstrated any prima-facie case to warrant the granting of the orders sought given that he was in total breach of the loan agreement between him and the 1st Respondent. They added that the Applicant had not established any grounds for the grant of injunctive orders set out in Giella v Casman Brown & Company Limited (1973) E.A 358. 23. They were of the view that the Applicant having defaulted in servicing the loan advanced to him by the 1st Respondent causing the said loan inclusive of interest to rise to Kshs. 7,343,259.52/=, issuing the orders sought will be akin to this court rewriting the loan agreement between the Applicant and the 1st Respondent contrary to the general rule that a court of law cannot rewrite a contract between parties reiterated by the Court of Appeal in National Bank of Kenya Limited v Pipeplastic Samkolit (K) Limited (2002) 2 EA 503. 24. They added that the 1st Respondent’s exercise of his statutory power of sale did not precluded the Applicant from exercising their right of redemption under section 89(2) of the Land Act before the fall of the hammer during a public auction thus the orders sought ought not to be granted. 25. On whether the Applicant will sufier irreparable harm not capable of being remedied by way of damages, the 1st Respondent was of the view the dispute herein was quantifiable thus any loss sufiered by the Applicant if the orders sought are not granted can be remedied through a monetary award which the 1st Respondent would be in a position to pay. They relied on several High Court authorities, including Marple Brooks Projects Company Limited & Another v I & M Bank Limited (2019) eKLR, in support of this position. 26. The 1st Respondent also invited this court to consider the holding in Sammy Japheth Kavuku v Equity Bank Limited & Another (2014) eKLR to the efiect that a dispute as to the amount outstanding is not a basis for an injunction to restrain a mortgagee from exercising the statutory power of sale. 27. The 1st Respondent concluded their written submissions by submitting that the balance of convenience tilted in their favour, given that if the orders sought are granted, the outstanding debt of Kshs. 7,343,259.52/= will continue to accumulate interest. They also added that if it ultimately turns out that the Applicant was entitled to an injunction, the 1st Respondent could easily compensate the Applicant for any loss. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/813/eng@2026-02-05 3

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Analysis & Determination 28. This court has duly considered the parties’ pleadings, submissions, annexures, and authorities relied upon by each party. The only issue for determination is whether the instant Application is merited. Whether the application and the orders sought are merited 29. In determining this Application, this court warns itself of the dangers of making definitive findings of fact or law at this interlocutory stage as guided by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, where the Court stated: “ …..It is true that the Court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard…” 30. The position above was also taken in Lucy Nungari Ngigi & 4 Others -vs- National Bank of Kenya Limited & Anor (2013) eKLR, where the court stated: “ ....I am also aware that the 1st Defendant has raised issues in respect of the mortgage herein, their right to exercise the statutory power of sale, breach of the addendum, default of repayment of the loan etc. They have also raised some accountability issues from the 2nd Defendant on the purchase price. But even these queries should be reserved for and determined at the trial. These issues are in direct confiict with issues raised by the Plaintifis and the 2nd Defendant. At this stage I should not make any comments or findings, or express opinions on the substantive issues in controversy in order to avoid hurting the trial herein...” (Emphasis added) 31. It is also imperative from the onset to address a common thread running through the 1st Respondent’s opposition to the instant Application. The Applicant took the position that if the orders sought were to be granted, this court would be rewriting a contract between the parties herein. 32. Whereas, the 1st Respondent cited several authorities in support of the position above, this court is well aware that in some instances like where a contract is unconscionable, a court can rewrite a contract executed by parties. Therefore, the general rule that a court cannot rewrite a contract executed by the parties cannot prevent a court from issuing injunctive orders to prevent the performance of a contract if the circumstances of a case demand. 33. The Applicant herein seeks injunctive orders. The principles guiding the grant of an interlocutory injunction in this jurisdiction were set out in East African Industries vs. Trufoods [1972] EA 420 and Giella vs. Cassman Brown & Co. Ltd [1973] EA 358. Those principles were restated in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, where the court rendered itself thus: “ In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; (a) establish his case only at a prima facie level, (b) demonstrate irreparable injury if a temporary injunction is not granted, and (c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/813/eng@2026-02-05 4

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These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not suficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will sufier, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.” 34. This court will now proceed to determine whether the Applicant has satisfied the principles for the grant of injunctive orders. 35. On whether the Applicant has established a prima facie case, the Applicant took the position that the alleged failure by the 1st Respondent to serve him with the relevant notices and the failure by the 1st Respondent to do a forced valuation of the suit property before advertising the same for sale had established a prima-facie case in his favour. 36. It is also noteworthy that the Applicant took issue with Kshs. 8,042,640.83/= which the 1st Respondent was seeking to recover from him arising from Kshs. 4,000,000/= facility which he described as beyond the permissible interest rates under the law. 37. The 1st Respondent in response placed before this court notices and an Afidavit of Service sworn by J. K Wanderi on 05th September 2025 showing that all the relevant notices were served upon the Applicant through his last known postal address as well as his WhatsApp phone number 0727888569. The list of persons served with relevant notices through GPO Nairobi was also filed by the 1st Respondent to confirm service of the relevant notices through post. 38. They also placed reliance on Sammy Japheth Kavuku v Equity Bank Limited & Another (2014) eKLR for the position that a dispute as to the amount outstanding is not a basis for an injunction to restrain a mortgagee from exercising the statutory power of sale. 39. Simply put, the 1st Respondent took the view that the Applicant has not established a prima-facie case to warrant the issuing of the orders sought. 40. In the Mrao Ltd Case (supra) the Court of Appeal defined a prima facie case as follows: “ …It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is ofiered by the defence...The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/813/eng@2026-02-05 5

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legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case…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. A prima facie case is more than an arguable case. It is not suficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.’ 41. Guided by the authority above, the question that abounds at this stage is whether the Applicant has demonstrated that there exists a right which has been apparently infringed by the Respondents to call for an explanation from the latter. 42. The evidence led by the Respondents on service of the relevant notices upon the Applicant was not impeached by the Applicant. It follows that this limb for grant of an injunctive order cannot be supported by the Applicant’s alleged want of procedural regularity on the service of the relevant notices. 43. The only questions which the Respondents failed to address at this interlocutory stage is whether the suit property was valued before the same was advertised for sale, and whether the amount of Kshs. 8,042,640.83/= plus costs and fees which they seek to recover from the Applicant arising from a loan facility of Kshs. 4,000,000/= was within the permissible interest rates under the law. 44. The 1st Respondent cited the Sammy Japheth Kavuku case (supra) for the position that a dispute in the amount of the money recoverable from the Applicant was not a ground for the grant of injunctive orders. However, a reading of that authority shows that the court rendered itself extensively as follows on that issue: …The position adopted by courts is that a dispute as to the amount outstanding is not a basis for injunction to restrain a mortgagee from exercising the statutory power of sale. In the case of Desai & Others (supra), the court stated as follows at page 54: “ In any event it is now settled judicial precedent, that a dispute as to amount is not a basis for injunction to restrain a mortgagee from the exercise of the statutory power of sale...” 38.In the case of Elizabeth Academy- Karen Limited (supra), Honourable J. Kamau, J. stated as follows at paragraph 37: “A legal position has been taken that a Mortgagee will not be restrained from exercising its power of sale because the amount was in dispute. I wish to reiterate the position espoused in the Halsbury’s Laws of England 4th Edition Vol 32 at page 725 cited in HCCC No 10 of 2010 Scholastica Nyaguthii Muturi vs Housing Finance Co of Kenya Limited on page 8 that- 'The mortgagee will not be restrained from exercising his power of sale because the amount is in dispute or because the mortgagor has begun a redemption action or because the mortgagor objects to the manner in which the sale is being arranged. He will be restrained, however, if the mortgagor pays the amount into court, that is, the amount the mortgagee claims to be due to him, unless on the terms of the mortgage the claim is excessive.'”(Emphasis added) 45. It is evident from a full reading of the authority above that an injunction will be issued where parties are disputing the amount due if the amount claimed by a financial institution is excessive. 46. This court takes the view that given the sum of over Kshs. 8,000,000/= sought from the Applicant which is double the principal sum of over a loan facility of Kshs. 4,000,000/=, the Applicant has shifted https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/813/eng@2026-02-05 6

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the evidential burden to the 1st Respondent to explain why they seek to recover such an excessive sum of money from him. 47. The 1st Respondent has not also demonstrated at this stage whether they conducted a forced value of the suit property before advertising the same for sale. Forced valuation of the suit property before advertising the same for sale is a statutory obligation placed on a financier. 48. In the absence of evidence of the suit property’s forced valuation before advertisement at this interlocutory stage, it follows that the evidential burden has shifted to the 1st Respondent to demonstrate compliance with its statutory duty of conducting a forced valuation of the suit property before advertising the same for sale. 49. The unanswered questions above incline this court to find and hold that the Applicant has established a prima-facie case for grant of injunctive orders. 50. On irreparable loss, the Applicant submitted that if the orders sought are not granted, the suit property would be sold by the Respondents, thus causing his family to lose their matrimonial home, which will inevitably cause irreparable injury to them. 51. The 1st Respondent was of the view that any loss to be sufiered by the Applicant as a result of them exercising their crystallized statutory power of sale was capable of being compensated by way of damages which the 1st Respondent has the ability to pay. They also added that the grant of the orders sought will cause the outstanding loan to continue accumulating interest to their detriment. 52. This court agrees with the 1st Respondent that any loss sufiered by the Applicant if the orders sought by the Applicant are not granted can be remedied by way of damages since the loss of the suit property can be quantified, and that the 1st Respondent being a financial institution is capable of paying damages. 53. The 1st Respondent’s argument above is supported by several High Court authorities. 54. However, Halsbury’s Laws of England, 3rd Edition Volume 21, Paragraph 739 page 352 defines irreparable injury as; ‘injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintifi may have a right to recover damages is no objection to the exercise of the jurisdiction by grant of injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages, an injunction may be granted, if the injury in respect of which relief is sought is likely to destroy the subject matter in question.’(Emphasis added) 55. The authority above shows even where the injury to be sufiered by a party is capable of being compensated by way of damages, an injunction may be granted if the subject matter will be destroyed if the injunction sought is not granted. 56. It is given that if the injunctive orders sought herein are not granted, the Respondents will proceed to exercise the 1st Respondent’s statutory power of sale over the suit property. 57. Therefore, if the Respondent is not stopped in their tracks at this stage, the Applicant will lose the suit property for good thereby destroying the subject matter herein. 58. Further, if this court declines to issue the injunction sought at this stage, and the Applicant ultimately succeeds in the main suit, it will be an academic exercise for this court to issue an injunctive order at that stage to save the suit property from sale, since by that time the suit property may have possibly https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/813/eng@2026-02-05 7

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changed ownership. The net efiect of this will inevitably be this court’s sanctioning the infringement of the Applicants’ right to property protected under Article 40 of the Constitution. 59. This court also associates itself with the holding in Joseph Siro Mosioma vs. Housing Finance Company of Kenya Limited & 3 Others [2008] eKLR, where it was stated as follows by Warsame J (as he was then): “ damages is not automatic remedy when deciding whether to grant an injunction or not. Damages is not and cannot be substituted for the loss which is occasioned by a clear breach of the law, in any case, the financial strength of a party is not always a factor to refuse an injunction. More so a party cannot be condemned to take damages in lieu of his crystalized right which can be protected by an order of injunction.” (Emphasis added) 60. The foregoing reiterates the position taken by this court that the mere fact that one can be awarded damages for denial of an injunction does not deny an Applicant the necessary protection by way of an interim injunction. 61. In any event, it will lead to absurd consequences if this court holds that a financial entity is at liberty to trample on people’s property rights just because it is a financial behemoth capable of paying any damages that they may be ordered to pay to a party that was denied an injunctive order at an interlocutory stage. 62. In the circumstances, this court holds and finds that if the main suit is ultimately determined in favour of the Applicant, failing to preserve the suit property at this stage may cause irreparable damage to the Applicant. 63. Lastly on the balance of convenience, this court has already made findings that the Applicant has established to the required standards the first two limbs for the grant of an injunctive order. Therefore, it inevitably follows that the balance of convenience tilts in his favour as stated in Paul Gitonga Wanjau vs. Gathuthis Tea Factor Company Ltd & 2 Others [2016] eKLR, where the Court expressed itself thus:“ …If applicant has a strong case on the merits or there is significant irreparable harm, it may infiuence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies.”(Emphasis added) Determination 64. The upshot of the above is that, the following orders commend to this court:a. That pending the hearing and determination of this suit inter-parties the Defendants/ Respondents whether by themselves, their servants, agents, and/or employees or any other persons acting through or under them be restrained from attaching and selling and/or in any such manner dealing with the Plaintifi’s land parcel number East Bukusu/South Kanduyi/18875 in exercise of statutory power of sale b. That pending the hearing and determination of this suit, the Plaintifi/Applicant whether by himself or any other person acting on their behalf is restrained from dealing with land parcel number East Bukusu/South Kanduyi/18875 in any manner inimical to the 1st Defendant/ Respondent’s statutory power of sale c. For expeditious disposal of this matter, the parties herein are ordered to comply with Order 11 of the Civil Procedure Rules within 14 days from the date hereof https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/813/eng@2026-02-05 8

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d. To avoid abuse of the injunctive order herein issued in favour of the Plaintifi/Applicant, this court will not entertain any adjournments during the hearing of this matter e. Costs of this Application shall abide the outcome of the main suit READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 05TH DAY OF FEBRUARY 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Kisiang’ani for the Plaintifi/Applicant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/813/eng@2026-02-05 9

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