Oluchiri v Rafiki Microfinance Bank Limited & another [2025] KEHC 8123 (KLR)

Oluchiri v Rafiki Microfinance Bank Limited & another (Civil Case E007 of 2024) [2025] KEHC 8123 (KLR) (12 June 2025) (Ruling)

Neutral citation: [2025] KEHC 8123 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Case E007 of 2024

CW Meoli, J

June 12, 2025

Between

Patrick Ayoma Oluchiri

Applicant

and

Rafiki Microfinance Bank Limited

1st Respondent

Antique Auctions Agencies

2nd Respondent

Ruling

1. The motion dated 25. 06. 2024 by Patrick Ayoma Oluchiri (hereafter the Applicant) seeks a temporary injunction to restrain Rafiki Microfinance Bank Limited and Antique Auctions Agencies (the 1st and 2nd Defendants , hereafter the 1st and 2nd Respondents/Respondents), their agents, servants or any other person acting for them from selling by public auction or by any other means alienating or transferring all that property known as Ngong/Ngong/33087 (hereafter the suit property) pending the hearing and determination of this suit. The motion is expressed to be brought under Sections 90, 96(2), 97(2) of the Land Act, Section 93 of the Land Registration Act, Section 2 of the Matrimonial Property Act, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 1, 2, 3 and 4 of the Civil Procedure Rules.

2. This application was supported by the Applicant’s affidavit. To the effect that he is the owner of the suit property; that the said property was offered to the 1st Respondent to secure a loan facility in the sum of Kshs. 5,000,000/-; that he made monthly payments as they fell due until September 2023; and that subsequently, he requested the 1st Respondent to restructure the loan. That, however, the 1st Respondent remained silent until 8. 05. 2024 when he was served with the notice to sell by the auctioneer.

3. He further deposed that hitherto, the 1st Respondent, had never served him with the requisite statutory notices; and that no valuation of the suit property was undertaken before the auction while neither himself nor his wife had been served with the notice under Section 90 of the Land Act. Thus, he contends sale was irregular and ought to be stopped by the court, failing which his family will be homeless. He contends that he can clear the outstanding balance of the loan if restructured.

4. The Respondents opposed the application via an amended replying affidavit dated 8. 07. 2024, sworn by John Langat, described as the 1st Respondent’s assistant manager, debt recovery unit. He stated that by a letter of offer dated 6. 11. 2019 the 1st Respondent advanced a loan facility of Kshs. 5,000,000/- to the Applicant, secured by the suit property, to be repaid in 60 monthly installments of Kshs.140,953/-; and that the account fell into arrears at the end of 2023 leading to the statutory notice dated 7. 11. 23 under Section 90(1)(2) and 3 (e) of the Land Act to the Applicant and his spouse (annexures marked JL-3a and b dated 7. 11. 2023 and JL-4a and 4b- statutory notice and certificate of postage).

5. He further swore that despite the notices the Applicant failed to repay the loan and the 1st Respondent proceeded to issue a 40-day statutory notice of intended sale of the suit property on 7. 02. 24 under Section 96 (2) of the Land Act (annexures marked JL-5a and 5b- notice to sell dated 7. 02. 2024 and Jl-6a -copies of certificate of postage). He contends that the requisite notices having been served, the 1st Respondent’s statutory power of sale had crystallized. Moreover, that valuation of the suit property was done, and the valuation report dated 11. 04. 2024 indicated the market value of the suit property to be Kshs. 11,000,000/- while the forced sale value of the property was Kshs. 8,250,000/-. That due to default on the part of the Applicant to clear the outstanding sum of Kshs. 4,328,565. 90/-, the 1st Respondent had instructed the 2nd Respondent who served the Applicant with 45 days redemption notice and notification of sale dated 7. 05. 2024 under Rule 15(d) of the Auctioneers Rules (annexures marked JL 9a and 9b).

6. According to the deponent, the Applicant has not met the threshold for the grant of the orders sought; that the application is devoid of merit, and amounts to an abuse of court process and ought to be dismissed. Moreover, the Applicant having admitted the debt, an injunction would amount to clamping the bank’s statutory and contractual right of foreclosure.

7. The Applicant filed a supplementary affidavit dated 5. 09. 2024 wherein he stated that there was no express term on the charge instrument that notices would be sent through the post; and that the 1st Respondent had his phone number and email address but unfairly elected to dispatch crucial notices via his postal address. Contending that his right of redemption has thereby been infringed upon. Taking issue with the valuation report, he asserted that it did not reflect the accurate market value of the property, and that he stands to lose out if the sale is conducted on that basis.

8. The motion was canvassed via written submissions. By his submissions dated 5. 09. 2024, the Applicant first recited the considerations for the grant of a temporary injunction as spelt out in the locus classicus, Giella -vs- Cassman Brown (1973) EA 358, namely, demonstration of a prima facie case, irreparable harm, and the balance of convenience. Further citing the case of Mrao Limited -vs- First American Bank of Kenya Limited & 2 others [2003] eKLR on the definition of prima facie case, the Applicant reiterated that the statutory notice dated 7. 11. 2023 and the notice of intended sale dated 7. 02. 2024 were never served on him. Hence, he was entitled to the right and chance to redeem his property.

9. Taking issue with the certificate of postage, he contended that it was not adequate proof that the documents sent via registered post are the requisite notices. Citing differences in the dates on the notices themselves and the alleged dates of postage. Further pointing out that the said mode of service employed by the 1st Respondent differed with the physical service used by the 2nd Respondent to serve the Applicant with the redemption notice, and by which notice he became aware of the alleged proposed irregular sale. He further submitted that the notice of intention to sell ought to issue after the expiry of 90 days from the date of receipt of the initial notice under Section 90(1) of the Land Act , and that this period had not expired between the issuance of the 90 days statutory notice of intention to sell on 15. 11. 2023 and the issuance of the notice under Section 96(2) of the Land Act on 7. 02. 2024. Thus, he dismissed the process as irregular, citing the case of East Africa Ventor Co. Ltd -vs- Agriculture Finance Co-op Ltd and Another [2017] eKLR.

10. On the issue of irreparable loss, counsel submitted that the suit property is a family home, and that if the orders sought are not granted his family would be rendered homeless.

11. As concerns the definition of the balance of convenience reliance was placed on the case of Pius Kipchirchir Kago -vs- Frank Kimeli Renai (2018) eKLR. Counsel arguing that there being no dispute on default, no inconvenience will be suffered by the 1st Respondent as it was entitled to exercise its statutory power in accordance with the law to recover its money. While on the other hand, the Applicant stands to be greatly inconvenienced, tilting the balance of convenience in his favour. The court was urged to follow the path with the lower risk of injustice, weighing the Respondent’s commercial interest against the Applicant’s right to housing and to find in his favour.

12. By their submissions dated 13. 09. 2024, the Respondents first pointed out that the Applicant while faulting the mode of service, has not disputed that the postal address used belonged to him. Thus, the statutory notices were properly served and the burden to prove otherwise lies with the Applicant. Citing in support the case of Nyangilo Ocheng’ & another -vs- Fanuel Ochieng & 2 Others (1996) eKLR where the Court of Appeal held that, where the receipt of a statutory notice is not admitted, proof of posting must be tendered. Whereupon the burden of proving non-receipt of such notices shifts to the addressee, as contemplated by Section 3(5) of the Interpretation and General Provisions Act.

13. Emphasizing that the Applicant does not dispute the debt owed, the Respondents’ counsel asserted that the statutory notices were properly issued and served and the right to realise the security had crystallized. To buttress the submission, the Respondents cited the decision in John Karanja Njenga & Another-vs- Bank of Africa [2015]eKLR where it was held that the chargee’s right to exercise its statutory power of sale of the charged property crystalizes the moment there is a debt owed by the chargor, which remains outstanding despite demand for payment.

14. The Respondents reiterated the principles enunciated in Giella -vs- Cassman Brown (supra) and Mrao Ltd (supra), as re-affirmed in the case of Kenya Commercial Finance Co. Ltd -vs- Education Society (2001) 1EA 86, 87, governing the grant of an interlocutory injunction. As well as the sequential nature of the said considerations as spelt out by the Court of Appeal case of Nguruman Limited -vs- Jan Bonde Nielsen & 2 others (2014) eKLR. Arguing therefore that the Applicant has not met the threshold for issuance of the interlocutory injunction sought, and specifically, that no prima facie case was established, the Applicant having failed to demonstrate that there was a right which had been infringed.

Analysis and evaluation 15. The court has considered the parties’ rival material canvassed in respect of the motion. However, before delving into the merits of the motion, the court proposes to deal with the jurisdictional objection raised in the 1st Respondent’s affidavit material. To the effect that the subject matter, namely, value of the suit property falls below the pecuniary jurisdiction of this court. The market value of the suit property was placed at Kshs. 11,000,000/- and the forced sale value at Kshs 8,250,000/-, per the valuation report dated 11. 04. 2024.

16. Under Section 7 of the Magistrate’s Court Act , the upper limit of the pecuniary jurisdiction of the magistrates’ court is Kshs. 20,000,000/- for a court presided over by a Chief Magistrate. Thus, it is undeniable that this matter ought to have been filed before the subordinate court at Kajiado. That said, this court (Mutuku J.) took cognisance of the matter, giving initial directions on the motion which is the subject of this ruling. Article 165(3) of the Constitution provides that the High Court shall have unlimited original jurisdiction in criminal and civil matters. Under Section 18 of the Civil Procedure Act, the High Court may upon being moved, or on its own motion, transfer any suit, or other proceedings before it for trial or disposal before any court subordinate to it and competent to try the suit, withdraw any suit or proceeding pending in a subordinate court and try it, or transfer it to any competent subordinate court. Nothing barred the Respondents from applying at the earliest stage for such transfer in this case.

17. Article 165(5)(6) and (7) excludes jurisdiction by the High Court in respect of matters reserved for the exclusive jurisdiction of the Supreme Court under the Constitution or falling within the jurisdiction of the courts contemplated in Article 162 (2). Equally, while the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, it has no jurisdiction over a superior court.

18. Thus, the Constitution and relevant law do not bar the High Court from entertaining any dispute whose monetary value does not exceed Kshs 20,000,000/. Any provision purporting to limit the jurisdiction of the High Court must derive validity from the Constitution itself and must do so expressly and not by implication, unless the implication is necessary for the carrying into effect the provisions of the Act. The principle enunciated in East African Railways Corp. vs. Anthony Sefu [1973] EA 327, still holds true: -“It is, a well-established principle that no statute shall be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect.”

19. Hence the mere fact that the suit property herein was valued below KShs.20 million does not oust the jurisdiction of this Court. In practice however, and for good order, in furthering the overriding objective in section 1A and B of the Civil Procedure Act, and cognisant of the right of parties generally to appeal decisions right from the subordinate court to the Court of Appeal, the High Court will decline jurisdiction in matters falling within the pecuniary jurisdiction of the subordinate court. That said, this court is clothed with unlimited original jurisdiction to deal with this matter and or to transfer it to a competent court subordinate to it for trial, and this far, no prejudice has been demonstrated on the part of the 1st Respondent.

20. Returning to the motion, the first question is whether the Applicant established a prima facie case with a probability of success; that unless an interlocutory injunction is issued, he will suffer irreparable injury which would not adequately be compensated by an award of damages. Where does the balance of convenience lie? The now settled principles governing the grant of interlocutory injunctions were spelt out in Giella v Cassman Brown & Co. Limited [1973] EA 358 were reiterated in Nguruman Limited (supra). The latter decision is particularly illuminating. The Court described the role of the court in such application to be merely to consider whether the principles for the grant of the interlocutory injunction were met. The Court further observing that:“...Since the fundamentals about the implications of the interlocutory orders of injunctions are settled, at least over four decades since Giella’s case, they could neither be questioned nor be elaborated in detailed research. Since those principles are already ...... by authoritative pronouncements in the precedents, they may be conveniently noted in brief as follows:In an interlocutory injunction application, the Appellants has to satisfy the triple requirements to:a)establish his case only at a prima facie levelb)demonstrate irreparable injury if a temporary injunction is not granted.c)allay any doubts as to (b) by showing that the balance of convenience is in his favor.”

21. The Court explained that the three (3) conditions above apply separately as distinct and logical hurdles to be surmounted sequentially by an applicant. Such that, it was not enough for the applicant to establish a prima facie case, they must further successfully establish irreparable injury, that is, injury for which damages recoverable at law could not be an adequate remedy. And where there is doubt as to the adequacy of damages, the Court will consider the balance of convenience. Conversely, where no prima facie case is established, the court need not consider irreparable injury or the balance of convenience. The Court of Appeal emphasized that the standard of proof is to prima facie standard.

22. As to what constitutes a “prima facie case” the Court of Appeal expressed itself as follows: -“Recently, this court in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 fashioned a definition for “prima facie case” in civil cases in the following words:“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 sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the appellant’s case upon trial. That is clearly a standard, which is higher than an arguable case.We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The Appellants need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the appellant’s case is more likely than not to ultimately succeed."(emphasis added).

23. In the present case, it is not in dispute that there exists a charge over the suit property over a loan facility advanced to the Applicant in the sum of Kshs. 5,000,000/-. Further it is not in dispute that the Applicant is in default and the sums owed on the loan account are not disputed. The Applicant’s case is premised primarily on the adequacy of the service of statutory notices upon him and secondly whether the statutory power of sale had crystallized before the notification of sale served. He also appeared by his further affidavit, to challenge the values assigned to his property at the point of realization, although his submissions did not address the matter.

24. Starting with the issue of the valuation of the property, the duty of the 1st Respondent under Section 97(2) of the Land Act was to ensure that a valuation was undertaken by a professional valuer prior to sale, in order to obtain the best price, reasonably obtainable at the time of sale. The onus was on the Applicant to establish, prima facie, that the said Respondent failed to discharge its duty of care under Section 97(1) of the Land Act, by demonstrating that the impugned valuation represents a gross undervaluation of the charged property by tendering evidential material. He did not discharge this burden. In Zum Zum Investment Ltd v Habib Bank Limited [2014]e KLR Kasango J where the applicant had proffered a counter-valuation report against the lender’s report Kasango J (as she then was) observed that:“It is not sufficient for the Plaintiff to merely claim that the intended selling price is not the best price obtainable at the time by producing a counter-valuation report. The Plaintiff must satisfactorily demonstrate why the valuation report that the Defendant intends to rely on (in auctioning the charged property) does not give the best price obtainable at the material time … The Plaintiff needs to show, for instance, that the Defendant’s valuer is not qualified or competent to carry out the valuation, or that the valuation was carried out in consideration of irrelevant factors or that the valuation was done before the time of the intended sale.”

25. In Orion East Africa Ltd v Eco Bank Kenya Ltd and Another [2015] e KLR the Court of Appeal set out the circumstances in which a mortgage may be restrained from exercising its statutory power of sale. The Court stated:-“The circumstances in which a mortgage may be retrained from exercising its statutory power of sale are set out in Halsbury’s Laws of England, volume 32 (4th Edition) paragraph 725 as follows: “725. When mortgage may be restrained from exercising statutory power of power of sale.The mortgagee will not be restrained from exercising his power of sale because the amount due is in dispute, or because the mortgagor has began 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 claimed into court, that is, the amount which the mortgagee claims to be due to him, unless, on the terms of the mortgage, the claim is excessive.”

26. Consequently, the Court of Appeal upheld the decision of the trial judge that a prima facie case had not been established despite the disputed value of the mortgaged asset, and the Court further upheld the direction made at trial directing that notwithstanding, the mortgagee re-issue a statutory notice and re-value the suit properties to determine the forced sale value before exercising its statutory power of sale.

27. The court is of the view that the Applicant’s complaint concerning the values assigned to the suit property by the valuer was not borne out through evidence, and nothing turns on that ground.

28. The court will now consider the issue concerning service of statutory notices. The relevant charge document attached to the 1st Respondent’s replying affidavit and marked as annexure JL -2 appears incomplete as pages 2-24 thereof are missing. That being the case, the court cannot ascertain whether there were express terms on the mode of communication and service of notices. What is apparent from the scant material is that the Applicant and his spouse gave their postal address as 6733-00200, Nairobi. The said postal address has not been disputed; what the Applicant is disputing is the mode of service of the initial notices preceding the auctioneer’s redemption notice and notice of sale. On their part, the 1st Respondent tendered the certificate of postage of the said notices showing that the notices under Sections 90(1) and 96 (2) of the Land Act were sent to the Applicant’s undisputed postal address.

29. Section 90(1) of the Land Act provides that where a chargor is in default by failing to make due payments, which continues for a period of a month the chargee “may serve on the chargor a notice, in writing to pay the money owing” . The 1st Respondent asserts that a subsequent notice under Section 96 (2) of the Land Act was served upon the expiry of 90 days as the Applicant had failed to remedy his default. The Applicant has disputed the service of these notices while admitting service of the Auctioneer’s redemption notice of 7. 05. 2024, allegedly physically served upon him. Section 3(5) of the Interpretation General Provisions Act states that:“Where any written law authorizes or requires a document to be served by post, whether the expression “serve” or “give” or “send” or any other expression is used, then, unless a contrary intention appears, the service shall be deemed to be effected by properly addressing to the last known postal address of the person to be served, prepaying and posting, by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of the post”.

30. Where there has been proof of effective service provided by a respondent, the burden to disapprove such service falls on the applicant. (See Nyangilo Ochieng’ & another -vs- Fanuel Ochieng & 2 Others (1996) eKLR ; Maithya –vs- Housing Finance Corporation of Kenya HCCC No. 1129 of 2002 . In the latter case, the court observed as follows: -“It is the Plaintiff who alleged that he was not served with the Statutory Notice. Once the Defendant provided evidence of that service the burden of proof shifted to the Plaintiff. This shifting of burden of proof is based on the rule that “he who asserts must prove.” See the book of Principles of Evidence by Alan Taylor 2nd Edition. The onus was on the Plaintiff to prove non-service of the Plaintiff. In view of the fact that the Plaintiff failed to prove the same the Plaintiff has failed to satisfy that burden. It is obvious that the Plaintiff could have obtained information from the Post Master General on whether the said notice was posted and the whereabouts of it. The Plaintiff did not on prima facie basis do so.”

31. On his part, the Applicant relied on bare denials of service of the notices. Such bare denials, without more, cannot dislodge the material evidence of postage tendered by the 1st Respondent. The court is satisfied that the notices under Section 90(1) and 96(2) of the Land Act were duly served upon the Applicant.

32. The Applicant has further argued that the 90-day statutory period under the first notice pursuant to Section 90(1) of the Land Act had not expired by the date of the issuance of the notification of sale under Section 96(1) of the Land Act, the latter which applies where the chargor does not comply with the former notice. At this point, the statutory power of sale crystalizes, and the chargee is required to issue and serve on the charger with the 40-day notification of sale under Section 96 (1) of the Land Act.

33. On the facts of this case, the 1st Respondent issued the 90-day statutory notice dated 7. 11. 2023 (annexure JL-3a and 3b to replying affidavit). The said statutory notice was apparently sent by post to the Applicant’s postal address vide certificate of postage issued on 15. 11. 2023. The 40 days statutory notice dated 07. 02. 2024 was apparently posted on 12. 02. 2024 (see attachments to the replying affidavit marked annexure JL-5a and 5b). Evidently, this process commenced about 3- 4 days short of the 90-day period provided for under section 90(1) of the Land Act, which ought to have expired on or about 15. 02. 2024, calculated from the date of service of the first notice of 15. 11. 2023. Thus, the Applicant’s complaint here may have some merit: the 40-day notice was issued and served prematurely.

34. However, there was proven service upon the Applicant not only of the said notice albeit prematurely, but also the first notice under Section 90(1) of the Land Act. Further, the Applicant admits receipt of the redemption notice dated 7. 05. 2024 and issued pursuant to Rule 15(d) of the Auctioneers Rules by the Auctioneer. In the court’s view, what is demonstrated here is not so much a prima facie case of an infringement of a right, and the probability of success of the Applicant’s case upon trial, but merely a procedural error on issuance of the notice under Section 96(2) of the Land Act. The court is doubtful that the procedural error alone, in the circumstances of the case, amounts to more than an arguable case. In other words, the court doubts that the Applicant has demonstrated’’ an infringement of a right, and the probability of success of the appellant’s case upon trial. “

35. As to the question of irreparable injury, the Applicant argued that the suit property was his family home and that its sale would render him homeless; that the loss of a matrimonial home cannot be adequately compensated by an award of damages. This argument was opposed by the Respondents who argue that the Applicant was aware of the consequences of default on his part, namely, that the 1st Respondent would exercise its statutory power of sale. Further, that the suit property having been pledged as security and became a commodity for sale upon default.

36. It is now settled that the moment a chargor places his property, matrimonial or other, in the hands of a financial institution as a security in exchange for a loan, such property becomes a ready commodity for sale upon his default. See Christopher Muroki v Housing Finance Company of Kenya and Another [2006] e KLR and Andrew M. Wanjohi v Equity Building Society Ltd and Another [2006] e KLR.

37. Equally, the court is not persuaded by the argument that damages would not be adequate compensation for the Applicant in this case. Ex facie, any losses resulting from an irregular realization of the security by the 1st Respondent are quantifiable in damages and the said Respondent as a financial institution capable of making restitution to the Applicant. On the other hand, the growing debt may soon outstrip the value of the suit property thereby exposing the bank to more losses. Despite the two notices served on the Applicant by the charge between November 2023 and February 2024, there is no evidence that he has made any effort to make good his default, by making payments towards the debt admittedly outstanding. Clearly therefore, the balance of convenience tilts in favour of the 1st Respondent.

38. The Court of Appeal stated in Orion East Africa Ltd v Ecobank Ltd and Another [2015] e KLR that:“In an application for an interlocutory injunction it is good practice for the trial court to look at the whole case, not only to strength of the Applicant but also to the strength of the defence advanced by the Respondent, then make an appropriate order. In Hubbard –v- Vosper [1972] I ALL ER, 1023 at page 1029 Lord Denning MR, in setting aside an interlocutory injunction granted by a trial court stated:“We are told that practitioners have been treating these cases as deciding that, if the Plaintiff has an arguable case, an injunction should be granted so that the status quo may be maintained. The judge was so told in the present case, and that is why he granted the injunction.I would like to say at once that I cannot accept the proposition stated in those two cases. In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done. Sometimes, it is best to grant an injunction so as to maintain the status quo until the trial.At other times it is best not to impose a restraint on the Defendant but leave him free to go ahead.”

39. While in the present case it is evident that the process of recovery was marred by the premature issuance of the 40- day statutory notice, the Applicant remains in default. Thus, the most proportionate remedy for the 1st Respondent’s premature notice under Section 96(2) of the Land Act, in the court’s view cannot be an injunction against the said Respondent. See National Bank of Kenya v Shimmers Plaza Ltd [2009] e KLR and Labelle International Ltd v Fidelity Commercial Bank and Another (2003) 2 EA 541.

40. For all the foregoing reasons, the court is of the view that the Applicant has failed to make out a prima facie case with a probability of success, or to demonstrate that damages will not be an adequate remedy. While dismissing the prayer seeking an interlocutory injunction, the court hereby directs that the 1st Respondent shall not proceed with the exercise of its statutory power of sale in respect of the suit property until the following condition is met:a.the 1st Respondent shall serve upon the Applicant, in the manner stipulated under the charge instrument, a fresh statutory notice under Section 96 (2) of the Land Act.

41. The costs of the motion are awarded to the 1st Respondent in any event. Further, this court invoking the provisions of Section 18 (1) (a) of the Civil Procedure Act hereby makes an order transferring this suit to the Chief Magistrate’s Court, Kajiado for hearing and determination.

DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 12THDAY OF JUNE 2025. C.MEOLIJUDGEIn the presence of:For the Applicant: Mr. MwangiFor the Respondents: Mr. GithuiC/A: Lepatei