Parksons Enterprises Limited & another v Kenya Commercial Bank Limited & another [2023] KEHC 24340 (KLR) | Statutory Power Of Sale | Esheria

Parksons Enterprises Limited & another v Kenya Commercial Bank Limited & another [2023] KEHC 24340 (KLR)

Full Case Text

Parksons Enterprises Limited & another v Kenya Commercial Bank Limited & another (Civil Suit E004 of 2022) [2023] KEHC 24340 (KLR) (31 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24340 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Suit E004 of 2022

JK Sergon, J

October 31, 2023

Between

Parksons Enterprises Limited

1st Plaintiff

Wesley Rotich

2nd Plaintiff

and

Kenya Commercial Bank Limited

1st Respondent

Joseph M. Gikonyo t/a Garam Investment Auctioners

2nd Respondent

Ruling

1. The Plaintiffs/Applicants herein filed a Notice of Motion dated 1st August, 2022 under certificate seeking for the following orders:1. Spent.2. Spent.3. That this Honourable Court do make an order for execution of KCB payment plan and regularize the Plaintiff/Applicant’s Bank Account held at the 1st Defendant/Respondent’s4. That the Defendants/Respondents jointly and severally, their servants or agents be restrained by an Order of Temporary Injuction from selling, offering for sale, further advertising for sale, threatening to sell or in any other way dealing adversely with the properties known as L.R No. 631/1582 (Minasa Centre, John Kerich Road) and Kericho Municipality Block 2/30 ACK Business Centre both situate at Kericho Town, Kericho County i.n.o Anna Chebet Koech pending the hearing and determination of the substantive suit herein.5. That the costs of this application be provided for.

2. The Application is supported by the grounds laid out on its face and the facts stated in the affidavit of Wesley Rotich, a Director of the 1st Plaintiff who averred that at all material times, ANNA CHEBET KOECH, a co-director of the 1st Plaintiff was the sole registered owner of the suit properties known as Kericho Municipality Block 2/80 ACK Business Centre and L.R No. 631/1582 (Minasa Centre in Kericho Town, Kericho County which properties the said Anna Chebet Koech stood as the guarantor for 1st Plaintiff to charge the properties to the 1st Defendant.

3. That Anna Chebet Koech being the registered owner of the aforementioned properties, tendered the titles to the said properties to the 1st Defendant on behalf of the 1st Plaintiff as security for the loan facilities advanced to the said 1st Plaintiff.

4. He further averred that since the disbursement of the said loan facilities by the 1st Defendant, the 1st Plaintiff had repaid a substantial amount to the 1st Defendant towards servicing the loan facilities but when the Covid-19 Pandemic occurred, the 1st Plaintiff’s businesses were affected and it became extremely difficult to repay the 1st Defendant hence the failure to regularize its bank loan account.

5. That the 1s Defendant was intending to sell the above-mentioned suit properties by public auction on 1st September, 2022 to recover alleged loan arrears of Kshs. 217,063,000. 00 through the 2nd Defendant.

6. It was his averment that they were all aware of the loan arrears and were ready and willing to regularize their Bank account with the 1st Defendant as soon as practicable and that the 1st Plaintiff expected to raise a sum of Kshs. 46,000,000. 00 from the sale of the properties in the payment plan whereas the loan amount in areas was a sum of Kshs. 47,000,000. 00 and the 1st Defendant had already received a sum of Kshs. 3,500,000. 00 on 22nd July, 2022 as per the payment plan.

7. That the Plaintiffs had formulated a payment plan by placing several of its prime properties for sale with the sole aim of paying off and regularizing its loan arrears with the 1st Defendant and that the 1st Defendant had issued the 1st Plaintiff with statutory notices of power of sale dated 3rd February 2022 and 2nd March, 2022 for the sale of the aforementioned suit properties on 1st September, 2022.

8. He averred that the registered owner to the said suit properties, one Anna Chebet Koech, a director and Guarantor of the 1st Plaintiff was gravely ill, totally blind and had been undergoing Dialysis for the past three years as demonstrated by the medical records.

9. That they had received formal offers of purchase from various persons of interests to purchase their prime properties that is KIE Building on Kericho Municipality Block 1/601, Municipality Block 1/144 amongst other properties all situate within Kericho county so as to use the funds generated to regularize its Bank accounts with the 1st Defendant.

10. He reiterated that the inability to repay the loan arrears or regularize its Bank Account was occasioned by the Covid-19 Pandemic that brought about economic hardships to most businesses.

11. His further averment was that whereas the 1st Plaintiff wished and desired to regularize its Bank Account, the loan statements availed by the 1st Defendant showed that both the loan facilities had been lumped together yet the terms were quite distinct with respect to repayment period and interest chargeable and no statement of account reconciliation had been made to date.

12. That the 1st Defendant had charged interest beyond and above the agreed rate of interest, had unilaterally raised the rate of interest beyond the contractual rate, had raised the rate of interest unilaterally which was bad in law for lack of consideration, had unilaterally raised the interest rate without seeking such consent, which interest was therefore non-mutual and not contractual, that such excess interest was penal and contrary to law and amounted to usury, the interest charged and debited in the 1st Plaintiffs account was excessive, exorbitant, oppressive, unjust, inequitable and without consideration amounting to unfair enrichment and offended public policy.

13. That the 2nd Defendant acting on the instructions of the 1st Defendant had already issued the 1st Plaintiff with a Notification of Sale dated 8th June, 2022 to sell by public auction the suit properties on 1st September, 2022 but the Plaintiffs prayed for a permanent injunction to issue so as to regularize its Bank Loan Account with the 1st Defendant and that the 1st Plaintiff had shown by documentary evidence that it was likely to offset the Loan arrears if given ample time hence a prayer for a restraining order of injunction by the court.

14. He further averred that the 1st Defendant and some of its personnel had behaved in a most oppressive and inequitable way towards the 1st Plaintiff and its actions were harsh, unlawful, wrong, unjust and callous in the extreme despite the fact that the 1st Plaintiff had been the 1st Defendant’s customer for over 30 years which relationship had been beneficial to both parties over the years.

15. That the intended sale through public auction on 1st September, 2022 was malicious, oppressive and reeks of male fide and therefore it was imperative that the court issue a restraining order against the defendants herein.

16. In retort, the 1st Respondent through a Replying Affidavit dated 25th August 2022, sworn by Lilian Sogo, the Head Counsel Litigation of the 1st Respondent opposes the Applicants’ application for the reason that the said Applicants had in the said Application admitted to obtaining banking facilities from the 1st Respondent and having loan arrears, which admission demonstrated breach of the terms of the banking facilities by the Applicants, that the application did not meet the threshold for the injunction relief and that the application and the main suit proceeded from a misapprehension of the law on the 1st Defendant’s right to realize property pledged as security.

17. In further opposing the Applicants’ application, she averred that the Applicants were underserving of the injunctive relief sought as they had not come to court with clean hands, that the Application and the main suit were a veiled attempt by the Applicants to re-negotiate the terms of the banking facilities and that in the unfortunate event that the Applicants’ Application was allowed, it was the 1st Defendant that stood to suffer losses as the Applicants would continue to be in breach of the terms of the banking facilities, which facilities would continue to incur interests and fines which would be irrecoverable.

18. That the Respondents had complied with all statutory requirements including issuing the 90-days’ Statutory Demand Notice pursuant to section 90 (1) (2) and (3) (e) of the Land Act, 2012, the 40 days’ Notice to Sell pursuant to section 96 (2) and (3) of the Land Act, 2012, the 45days’ Notification of Sale pursuant to Rule 15 (d) of the Auctioneers Rules 1997, and newspaper advertisement for the sale of the suit properties pursuant to Rules 15(e) of the Auctioneers Rules 1997 and that the Applicants had not refuted the fact that the Respondents had complied with the statutory requirements.

19. On the factual background she averred that the 1st Applicant approached the 1st Respondent and requested banking facilities upon which vide a letter of offer dated 2nd June, 2016, the 1st Respondent offered to place at the 1st Applicant’s disposal banking facilities amounting to Kshs. 275,000,000. 00 on the terms and conditions set out on the said letter and in the 1st Respondent’s Standard Terms and Conditions and subsequently, the 1st Applicant approached the 1st Respondent and requested to renew the banking facilities whereupon in good faith, the 1st Respondent approved the 1st Respondent’s request and renewed the banking facilities to an amount of Kshs. 288,880,967. 00 through a letter of offer dated 27th June, 2017.

20. That afterwards, the 1st Applicant approached the 1st Respondent through its Directors and requested a restructure of the banking facilities and in a show of good faith, the 1st Respondent acceded to the 1st Applicant’s request and agreed to amalgamate all the existing facilities and accrued arrears into a Term Loan Facility of only Kshs. 228,026,736. 00 and additionally, the said banking facilities were priced at the Central Bank Rate plus a variable of 4% per annum and the Applicant was to repay the banking facilities in 96 consecutive monthly instalments inclusive of interest and other charges set out in the restructure letter from the date of the drawdown but despite the said restructure, the 1st Applicant defaulted in honoring their obligations to the 1st Respondent and was therefore in breach off the same.

21. On the recovery measures by the 1st Respondent she averred that the actions of the 1st Applicant left the 1st Respondent with no option but to chronologically commence recovery measures in accordance with the law since vide a letter dated 2nd March, 2021, the 1st Respondent issued the 1st Applicant with a 90 days’ Statutory Demand Notice pursuant to section 90- 91), (2) and (3) (e) of the Land Act, 2022 demanding an amount of Kshs. 18,975,540. 55 being the amount of arrears due and owing on the loan account as at 17th February, 2021 in order to rectify the default.

22. That vide a letter dated 3rd February, 2022, the 1st Respondent issues the Applicant with a 40 days’ Notice pursuant to section 96 (2) and (3) of the Land Act, 2012 requiring the 1st Applicant, having failed to rectify the default in accordance with the 90 days’ Statutory Demand Notice, to settle the outstanding arrears of Kshs. 38,407,411. 75 due as at 3rd February, 2022 and the full outstanding debt of Kshs. 216,699,011. 00 and when the 1st Applicant failed to remedy the default, the 1st Respondent instructed the 2nd Respondent to issue a Notification of Sale to the 1st Applicant and subsequently, on 13th June, 2022, the 2nd Respondent issued the 2nd Applicant, in his capacity a Director of the 1st Applicant, a 45 days’ Notification of Sale pursuant to Rule 15(d) of the Auctioneers Rules 1977,

23. That on 1st August 2022, the 2nd Respondent placed a newspaper advertisement on the Daily Nation Newspaper in relation to suit properties pursuant to Rule 15(e) of the Auctioneers Rules 1997 hence based on the foregoing, the 1st Respondent had complied with the legal requirements prior to proceeding with the sale of the suit property and that the Applicant neither disputed the above fact nor the sums aggregated in the stated Notices.

24. She averred that the Application did not meet the conditions for grant of interim reliefs since the Applicants must establish a prima facie case with high chances of success, that if orders are not granted, they stood to suffer irreparable loss and that the balance of convenience tilts in favour of granting injunctive orders.

25. That the Applicants had not proved that they had a prima facie case with high chances of success since the said Applicants had not demonstrated that their Application and underlying suit were merited and the Respondents were acting unlawfully. That instead the Applicants were only praying that the court intervenes and grant injunctive orders to allow the Applicants time to regularize the banking facilities.

26. She further averred that the Applicants had not demonstrated that if the orders they sought were not granted, they would be prejudiced in a manner not compensable by an award of damages and that if the Applicants were to suffer any damages, the said damages were quantifiable and the 1st Respondent would be in a position to pay.

27. That based on the facts in the instant suit, the balance of convenience tilts in favour of the 1st Respondent which stood to suffer greater harm should the injunctive orders be granted as the Applicant would continue to be in breach of the terms of the banking facilities which facilities, interest and fines accruing thereunder would be irrecoverable.

28. It was her averment that the Applicants had not adduced any evidence before the court to satisfy the 3 elements for the grant of injunctive reliefs as demonstrated above and that the 1st Respondent having restructured the banking facilities on the Applicants’ instant, and the Applicant having continued to be in breach of the terms of the said facilities, the cough ought not to allow the said Application.

29. She reiterated that the Applicants’ had neither disputed the amounts claimed by the 1st Defendant nor demonstrated that the 1st Respondent had failed to comply with the law in the process leading to the impugned sale of the suit properties and that the Applicants assertion that the 1st Respondent charged interest beyond the agreed rate was made in bad faith since at all times, the 1st Respondent charged the interest at the agreed rate as demonstrated in the notices alluded to above and that the Applicants had not adduced even an iota of evidence to demonstrate otherwise.

30. That by failing to present any evidence of their apprehensions, the Applicants had not met the legal requirement to demonstrated that the 1st Respondent varied the interest rate to their detriment hence based on the foregoing, it was evident that the Applicants’ Application and the accompanying suit were built on quicksand, brought in bad faith and ought not to be allowed and that it was in the interest of justice that the court dismisses the Applicants’ Application.

31. In a rejoinder, the Applicants vide a Further Affidavit sworn by WESLEY ROTICH, the second Applicant herein and dated 8th September, 2022 averred that the 1st Applicant did not dispute that the 1st Applicant was faithfully and diligently discharging its obligations of paying the sums owed under the loan facility until Covid-19 pandemic hit and disrupted its business hence the government in a move to save businesses across the country from spiraling into a crisis and closing down , activated various economic stimuli and reliefs as per the Presidential address issued on 25th March, 2020. That consequently, the Central Bank of Kenya released a circular dated 27th March, 2020 requesting commercial banks and mortgage financing companies to similarly adopt measures such as restructuring of loans and extending repayment periods in order to cushion the struggling businesses.

32. That being one of the businesses that were worst hit by the pandemic, the 1st Applicant wrote to the 1st Respondent vide a letter dated 7th April, 2020 detailing the impact that the pandemic had had on its business and requested for a moratorium and extension of its loan repayment period to mitigate the effects of the pandemic but unfortunately the same was denied and that despite the financial difficulties arising from the impact of the pandemic, the 1st Applicant did continue in good faith, to make payments whenever it could, towards setting the loan facility as well as trying to keep a float and survive the effects of the pandemic.

33. His averment was that the default in repayment of the loan facility, that occasioned the commencement of the adverse recovery measures by the 1st Respondent, were caused by matters largely out of control of the 1st Applicant and further exacerbated by the lack of good faith from the 1st Respondent in declining to extend a relief to it during the pandemic hence the 1st Applicant’s business has been struggling immensely but the said 1st Applicant had always been willing and ready to ensure it settles the loan facility but the 1st Respondent had not been ready or willing to consider any proposal made to regularize the default and settling the loan facility.

34. That the 1st Applicant had in a formulate repayment plan, indicated to the 1st Respondent that it had put up its prime properties for sale and which proceeds of the entire sale of the said properties would go into regularizing any default of repayment persisting and further settle the loan facility owed hence contrary to the 1st Respondent’s allegations, the instant Application and the entire suit only sought that the 1st Applicant be granted a chance to redeem the charged properties as provided under section 89 of the Land Act by seeking to be allowed time to execute its repayment plan.

35. He further averred that the above mentioned section 89 of the Land Act, prohibited any law, written or unwritten from foreclosing on the equity of redemption and the court will be perfectly in order to exercise its power of discretion under section 103 as read together with section 104 of the Land Act, to grant relief to the Chargor as prayed, if it deemed the circumstances fit and justifiable and that the execution of the repayment plan which entailed the sale of alternative properties to generate funds to make good the default was already underway as a sale agreement in respect to the first property had already been executed and the 1st Applicant had already begun disbursing the proceeds of the sale to the 1st Respondent.

36. That the 1st Applicant was deserving of the exercise of the court’s discretion in its favour by allowing it time to redeem the charged properties by executing its payment plan because at all material times, it had acted in good faith by settling the loan arrears and ensuring that the charge is not unfairly and inexplicably prejudiced by any financial difficulties it had been facing and that the 1st Respondent would not be unfairly prejudiced if the orders sought were granted as the said 1st Respondent held various securities in regard to the loan facilities advanced to the 1st Applicant and the entire loan facility was yet to mature and become due as the default in question related to the monthly repayments in settling the entire loan facility hence it was in the interest of justice the #court be pleased to grant the orders sought as prayed.

37. The 1st Respondent vide its Grounds of Opposition dated 14th September, 2022 opposed the Applicant’s Application and Plaint both dated 1st August 2022 on the ground that the Plaintiffs/Applicants had no cause of action against the Defendants/Applicants since the suit property to which the injunctive relief was sought against was registered in the name of a third part Anna Chebet Koech, who had not been enjoined in the instant proceedings and consequently the prayers sought in the Application and in the Plaint did not lie and were incapable of being issued at the instance of the Plaintiffs/Applicants since the said Plaintiffs/Applicants were strangers to the suit properties to the extent that they sought for injunctive orders against the Defendants/Respondents.

38. That the Applicants had not demonstrated a prima facie case with any remote chances of success at the trial to the extent that the Plaintiff/Applicants admitted their indebtedness to the1st Defendant/Respondents and that they defaulted in repaying the loan amount in breach of the terms of the loan agreement, that the Plaintiffs/Applicants did not contest the statutory notices issued under the Land Act, 2012 and under the Auctioneers At 1997 to the guarantor under the third party charge and to the 1st Plaintiff/Applicant being the borrower and that the guarantor, being the owner of the securities sought to be realized by the 1st Defendant/Respondent, did not contest the intended sale of the pledged securities.

39. That the Plaintiff/Applicants were seeking to renegotiate the terms of the loan through the court process by inviting the court to vary the terms of the agreement between the 1st Plaintiff/Applicant and the 1st Defendant/Respondent hence the Application and Plaint were frivolous, vexatious, totally devoid of merit and an abuse of the court’s process thus should be struck out and/or be dismissed with costs.

40. The Applicants through their Further Affidavit sworn by Wesley Rotich and dated 17th July, 2023 averred that at the time of instituting the instant suit Annah Chebet Koech now deceased was completely ill and not in apposition of being enjoined in the suit being the guarantor and the registered owner of the charged suit properties among other properties.

41. That the said late Annah Chebet Koech was his mother and together they were joint directors of the 1st Plaintiff/Applicant herein and she was one of the guarantors of the loan facility in issue and that the said Annah Chebet Koech passed away on 26th September, 2022 hence he put in an application for issuance of a limited grant of Letters of Administration Ad Litem before the court hence he was now authorized by law to represent and protect all the interests of his late mother pending the filing and determination of the substantive Succession Proceedings.

42. That they had now filed the Substantive Succession Proceedings in court in respect of the estate of the said Annah Chebet Koech under cause number Kericho Hcf P&a No 23 Of 2023 and due to the demise of the main guarantor of the loan facility herein, it was natural that the 1st Defendant did consider removing the share of the guarantee of the deceased as provided for in law.

43. That it was not denied that the 1st Plaintiff/Applicant owed the 1st Respondent but they were requesting to be allowed to pursue the succession proceedings with a view of obtaining authority to dispose of some of the family properties and offset the bank loan and have it regularized and enable the 1stPlaintff/Applicant continue with the normal payments considering the fact that maturity date of the facility was the year 2027 this he prayed that the court consider their application favorably as it was the wish of the 1st Defendant/Applicant and the court to assist businesses prosper not to destroy them.

44. Directions were given that the Application be canvassed by way of written submissions. Accordingly, the parties complied and filed their respective submissions.

45. The Plaintiffs/Applicants in their written submissions dated 7th September, 2022 reiterated the contents of their Notice of Motion Application and the factual background before placing reliance on the provisions of Order 40 Rule 1 Civil Procedure Rules, 2010 in submitting that it was at the court’s discretion to consider the circumstances of each case to determine whether a party was deserving of the interim reliefs sought and in making that determination, it was now well settled in law that the principles were as espoused in the case of Giella v Cassman Brown [1973] EA.

46. The Applicants framed three issues for determination as follows:i.Whether the Applicants have established a prima facie case with a probability of success.ii.Whether the Applicants stand to suffer irreparable harm.iii.Whether the balance of convenience lies

47. On the first issue, they relied on the case of Mrao Ltd v First American Bank of Kenya Ltd& 2 others [2003] eKLR where the Court of Appeal defined a prima facie case as follows:“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case 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 as to call for an explanation or rebuttal from the latter.”

48. The Applicants thus submitted that though it was not in dispute that a loan facility was advanced to the 1st Applicant sometimes in the year 2016 and 2017 and as a result of the harsh economic effects of the Covid-19 pandemic, the 1st Applicant fell into arrears and could not service the loan facility as per the terms of the letter of offer, the 1st Applicant has always acted in good faith and strived despite the harsh economic environment, to settle the debt owed to the 1st Respondent and kept it informed of every new and unprecedented development that affected its ability to comply with the terms of the letters of offer, however it was unfortunate that the same could not be said of the 1st Respondent.

49. Their further submissions was that since the 1st Applicant obtained the loan facility from the 1st Respondent back in the year 2016, it only fell in arrears for the first time in the year 2020 when Covid-19 pandemic hit the word, that the same was unprecedented and unforeseeable event as virtually every sector of the economy was affected including the 1st Applicant and as a result, the government provided economic stimuli and reliefs to try and cushion many businesses from closing down, the Central Bank of Kenya thereafter issued a circular dated 27th March, 2020 requesting banks, such as the 1st Applicant to renegotiate favourable loan terms to struggling businesses and upon the 1st Applicant requesting a restructure of its loan facility due to the effects of the pandemic, the 1st Respondent declined the said request.

50. That the above notwithstanding, the 1st Applicant soldiered on and struggled to pay off the loan facility as agreed but the effects of the pandemic caught up with it and it again fell into arrears hence the commencement of the measures to sell the charged properties and all the requisite notices had since been issued and what was remaining was the actual sell of the suit properties by auction.

51. The Applicant relied on the doctrine of frustration as a result of Covid-19 pandemic to the extent that the same temporarily incapacitated its ability to repay the loan. They placed reliance in the case of Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd & another [2014] eKLR where he Court of Appeal when explaining what constitutes the doctrine of frustration held as follows:“In Halsbury's Laws of England, Vol. 9(1), 4th Edition at paragraph 897:-“…First, the doctrine of frustration has evolved to mitigate the rigour of the common law's insistence on literal performance of absolute promises so as to give effect to the demands of justice. …Fourthly, the essence of frustration is that it should not be due to the act or election of the party seeking to rely upon it, but due to some outside event or extraneous change of situation. Fifthly, that event must take place without blame or fault on the side of the party seeking to rely upon it; nor does the mere fact that a contract has become more onerous allow such a plea.”In the case of;- Davis Contractors LTD -vs- Farehum U.D.C, (1956) A.C 696, Lord Radcliffe at page. 729 held:“...frustration occurs whenever the law recognizes that, without the default of either party a contractual obligation has become incapable of being performed because the circumstances in which the performance is called for would render it a thing radically different from that which was undertaken by the contract. “Non haec in foedera veni”. It was not what I promised to do”.

52. It was the Applicant’s submissions that in a bid to redeem the properties from the impending sale, and save the property of the guarantor who was gravely ill, totally blind and undergoing dialysis on a regular basis, the 1st Applicant had formulated a repayment plan which entailed the sale of its other prime properties which proceeds would go directly to the 1st Respondent to make good of its default and commence the process of discharging the charged properties but the 1st Respondent had since declined and/or ignored to consider the said payment plan and it was hell bent on selling the charged properties regardless.

53. Thus, the Applicants submitted that the refusal to consider the 1st Applicant’s payment plan that involved the repayment of the loan through proceeds of the sale of its other prime properties was mala fides and it unfairly and illegally clogged equity of redemption under section 89 of the Land Act. He relied on the case of Surya Holdings Limited & 2 others v CFC Stanbic Bank Limited [2015] eKLR where the court explained the equity of redemption to urge the court to take judicial notice of the effects of the pandemic on various economic sectors of the country and the doctrine of the equity of redemption in considering whether to exercise the court’s discretion in favour of the applicants or not and to further take consideration of the fact that the 1st Applicant only fell into arrears during the pandemic and had since commenced a repayment plan that will see the arrears in default settled.

54. Further reliance was placed on the case of Mariakani Cottage Hospital Limited v Gulf African Bank Limited [2021] eKLR, whereby the court when faced with similar circumstances held as follows:“The Applicant stated that the purported actions by the Respondent is threatening to cripple the Applicant and its employees and will paralyze and kill off the Applicant’s business.It is the Applicant’s contention that it has made tremendous efforts towards clearing the loan arrears and has continued to repay the loan despite ravaging aftershocks of Covid-19 pandemic.It is the Applicant’s contention that from 2018 to October 2020, it had paid a total of Kshs.64, 339, 668 to the Respondent in part settlement of the loan. This is approximately half of the advanced loan of Kshs.149, 430, 559/- including Ksh 4,000,000/- The Plaintiff submitted it has resolute intention and great efforts to settle the arrears and continue repaying the loans as the Corvid -19 curve is flattening.The Covid -19 pandemic has had adverse effect to the business as would be patients kept away from the hospitals generally the plaintiff included and inflicted the Plaintiff with severe losses.The Plaintiff awaits payments from NHIF among other Health Insurance Companies and rental payments of the Plaintiff’s property.In light of the above, the Applicants have demonstrated that they have established a prima facie case with probability of success.”

55. On the second issue, the Applicants relying on the definition of irreparable harm as defined in the case of submitted that the property in question that was subject of the 1st Respondent’s statutory power of sale was that of the guarantor Anna Chebet Koech who had been gravely ill, totally blind and undergoing dialysis treatment for the past 3 years and that the principal debtor in the instant suit was ready and willing to make good of its default and had already put up some of its prime properties for sale and all proceeds were intended to be channeled to the 1st Defendant which process had already begun.

56. It was their further submissions that if the 1st Applicant was not allowed a chance to redeem the property by executing its payment plan which was well underway, it stood to suffer irreparable harm as its business would be crippled by the foreclosure and that if the relief sought do not issue, the Applicants would have been denied the chance to exercise their right to the equity of redemption as they would have denied the chance to execute their repayment plan and make good the default.

57. On the third issue the Applicants relied on a combination of the holdings in the case of Paul Gitonga Wanjau v Gathuthis Tea Factory Limited & 2 Others [2016] eKLR and Bryan Chebii Kipkoech v Barnabas Tuitokek Bargoi & Another [2019] eKLR to submit that the balance of convenience tilts in favour of the Applicants because the harm that will be occasioned on them if the interim orders did not issue and the suit was ultimately allowed was far much greater than the harm, if any, that will be occasioned on the 1st Respondent if the interim relief is granted and the suit is ultimately dismissed and that the guarantor would have lost its property for good while the 1st Respondent would have only had to postpone his impending sale. That it was in the interest of justice that the court deems it fit to exercise its discretion in favour of the Applicant.

58. In retort the 1st Respondent reiterated the factual context and content of her Replying Affidavit before framing the issues for determination as follows:i.Whether the Plaintiffs/Applicants are privy to the contract between the guarantor and the 1st Respondent;ii.Whether the Plaintiffs/Applicants have satisfied the threshold for grant of an interlocutory injunction; andiii.Whether a Court can grant a temporary injunction based on a dispute as to the outstanding loan amounts and interest thereon.

59. On the first issue, the 1st Respondent submitted that the Applicants were not privy to the contract between the guarantor and the 1st Respondent and that the Applicants were strangers to the suit properties to the extent that they sought for injunctive orders against the 1st Respondent as they had no personal interest in the suit properties and did not stand to be personally affected by sale of the same as they did not have any interest vested or contingent in the suit properties which were the subject matter before the court.

60. It was the 1st Respondent’s submissions that the contract between a guarantor and the chargee was different from that between the chargee and the borrower hence in the instant suit, there was no contractual relationship between the guarantor and the borrower and that when a charge is created on a property belonging to the guarantor, it gives rise to an accessory contract by which the guarantor undertakes to ensure that the principal performs the obligations of the contract, therefore the guarantor was under a secondary obligation which was dependent upon the default of the principle borrower and which did not arise until that point. Reliance was placed in the case of Robert Njoka Muthara & another v Barclays Bank of Kenya Limited & another [2017] eKLR where the Court of Appeal held as follows:“By its very nature, a guarantee is distinct from the agreement which gives rise to the obligation guaranteed. The principal debtor is neither a party to the guarantee nor considered as one with the guarantor.”

61. The 1st Respondent thus submitted that the Applicants had no cause of action against the Respondents since the suit property to which injunctive relief was sought against was registered in the name of a third party, Anna Chebet Koech, who had not been enjoined in the instant proceedings by virtue of being the guarantor, and that the said guarantor being the owner of the suit properties sought to be realized by the 1st Respondent, did not contest the intended sale of the pledged securities, nor had she appointed the Applicants to act as her agents and consequently, the prayers sought in the instant Application and plaint did not lie and were incapable of being issued at the instance of the Plaintiffs/Applicants.

62. That from the foregoing, the application and suit before the court were devoid of merit as the Plaintiffs/Applicants were strangers to the suit properties hence the court should dismiss the application and suit in limine.

63. Concerning the second issue, the 1st Respondent submitted that the Applicants’ Application did not dispute the contract containing the mutual understanding and forming the contractual relationship between the 1st Applicant and the 1st Respondent and similarly the Applicant’s Application raised two main issues, that is, it contained an admission that the 1st Applicants were in default of their loan obligations and that the said Applicants were seeking court’s intervention to re-negotiate the terms of the banking facilities.

64. It was the 1st Respondent’s further submissions that the Applicants had not demonstrated that their Application and underlying suit were merited and that the Respondents were acting unlawfully, instead, the said Applicants were only praying that the court intervenes and grant injunctive orders to allow them to regularize the banking facilities hence the Applicant’s Application had not satisfied grounds for the grant of any of the orders south.

65. Reliance was placed on the case of Giella v Cassman Brown & Company Liited [1973] E.A. 358 and East African Development Bank v Hyundai Motors Kenya Limited [2006] eKLR on conditions for the grant of injunction to submit that the instant Application did not meet the threshold for grant of a temporary injunction for the reasons that the Applicants had not established a prima facie case with a probability of success, should the Applicants suffer any losses from the deductions, the same could be compensated by an award of damages and that the balance of convenience tilts in favour of the 1st Respondent.

66. On whether the Applicants had a prima facie case the 1st Respondent relied on the definition of prima facie case in Mrao Limited v First African Bank of Kenya Limited [2003] eKLR to submit that the Applicant ought to have establish that the 1st Respondent acted in contravention of an express term of the Loan Agreement, there were vitiating grounds to warrant the invalidation of the contract/loan agreement, certain parts of the contract had been declared invalid and/or the action of the 1st Respondent in deducting the instalments was in contravention of the law.

67. It was the 1st Defendant/Respondent’s submissions that in the contrary, the Applicants admitted default and were instead asking the court to allow them more time to settle the loan arrears that is they are seeking to re-negotiate the terms of the loan agreement through the court process. That a court of law cannot re-write contracts between parties. The 1st Respondent relied on the case of Nelson Riccardo Pasotto v Maurizio Marino [2020] eKLR where the court cited with approval the Court of Appeal decision in National Bank of Kenya Ltd –vs- Pipeplastic Samkolit (K) Ltd (2002) 2 EA 503:-“A Court of law cannot rewrite a contract between parties. The parties are bound by the terms of their Contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the Charge. As was stated by Shah JA in the case of Fina Bank Ltd –vs- Spares and Industries Ltd (2000) 1EA 52:-“It is clear beyond peradventure that save for those special cases where equity might be prepared to retrieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape a bad bargain.”

68. It was their submissions that the Applicants sought that the court adopt a repayment plan proposed by the Applicants against the 1st Respondent, that the said Applicants had not produced any payment plan before the court hence if the court was to allow the Applicants’ Application, not only would that amount to re-writing of the loan agreement but also an academic ruling considering that the said repayment plan does not exist and the 1st Respondent would be disabled from ever recovering the loan facilities.

69. It was the 1st Respondent’s further submissions that contrary to the Applicants’ allegations, exercise by the 1st Respondent of its statutory right of sale had not in any way clogged the guarantor’s right of redemption and that pursuant to section 89 (2) of the Land Act, the right of redemption cannot be limited except in accordance with the provisions of the Act. Reliance was placed on the case of Sheng Quarry Limited v National Industrial & Credit Bank Limited [2019] eKLR to buttress the above assertion.

70. The 1st Respondent submitted that the Act provides that the chargee has the responsibility to comply with the Land Act in terms of issuance of the requisite notices prior to exercising the right of sale and that the charge had issued all requisite notices and the Applicants had not disputed issuance of the said notices. That the averments by the Applicants that the charger intended to redeem the properties did not in itself stop the charge from proceeding with issuance of the relevant notices and selling the suit properties and that the chargor’s right to redeem the property subsists up and until fall of the hammer. Reliance was placed on the decided cases of Webwark Tradelink Ltd v Diamond Trust Bank Ltd & another [2017] eKLR and Kamulu Academy Limited & another v British American Insurance (K) Limited & 2 others [2018] eKLR to the effect that the sale by public auction extinguishes Equity of redemption at the fall of the hammer whether the property is transferred to the purchaser or not.

71. Thus the 1st Defendant/Respondent submitted that it was evident that the actions of the 1st Respondent had not extinguished the chargor’s right to redeem the suit properties as the suit properties could be redeemed up until the fall of the hammer during the public auction hence the allegations that the 1st Respondent clogged the Applicants’ equity of redemption was at best unfounded if not calculated to mislead the court.

72. That from the foregoing, the Applicants had not demonstrated that they had a prima facie case with a probability of success hence the court should find that the first limb of the test for grant of an interlocutory injunction had not been satisfied.

73. On whether the applicants would suffer irreparable harm if the injunction was not granted, the 1st Respondent relied on the Definition of ‘irreparable damages’ in Halsbury’s Laws of England, 3rd Edition volume 21, paragraph 739 page 352 to submit that the general principle on grant of injunctions was that a court of law should only grant interlocutory injunctive reliefs where an award of damages for harm or injury is said to be inadequate as was re-stated in the case of American Cynamid v Ethicom Limited 1975 1ALL ER 504 which was cited with approval by the High Court in the case of Pine Court Malindi Limited & another v Imperial Bank of Kenya (Under Receivership) & 2 others [2019] eKLR as follows:“If damages in the measure recoverable at common law could be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared be at that stage”

74. That what the Applicants had rendered in the instant Application was primarily the quantum of the amount payable and the applicable interest rates to the Loan Agreement hence the said Applicants would not suffer irreparable harm which could not be compensated monetarily since even if the Applicants were to succeed in the main suit, the most appropriate remedy in the circumstances would be a monetary award, the dispute was clearly quantifiable for the reason that the Applicants could clearly assign numbers to whatever loss they would suffer and that the Applicants had not shown that the 1st Respondent would not be in a position to pay the monetary awards should the court make a finding in their favour.

75. The 1st Respondent relied on the case of Marple Brooks Projects Company Limited & another v I & M Bank Limited [2019] eKLR where the court held as follows on irreparable damages:“The next issue to address is whether the injury visited upon the Applicant should the conservatory orders not be granted could be compensated by way of damages. The principle generally is that where damages would suffice and the Respondent would be in a position to pay them, the court ought not to grant conservatory orders at an interlocutory stage.”

76. Further reliance was placed on the case of Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others [2015] eKLR where the Court of Appeal held as follows:“We have not seen anything on record, with respect, that would suggest that damages could not have been an adequate remedy, particularly in view of Mr. Maloba’s insistence that he was ready, able and willing to pay any money that may be found to be due and owing to Total from him. On the contrary, Total’s loss and damage, if any, could be easily calculated and quantified to a cent.”

77. That the Applicants having been fully aware of the 1st Applicant’s default and indebtedness to the 1st Respondent had however sought to challenge the repayment alleging that the 1st Applicant was charged interest beyond the contractual rate. The 1st Respondent referred to paragraph 4. 8 of the loan agreement between the1st Applicant and the 1st Respondent which provided as follows:“The Bank may from time to time at its sole discretion and within the limits permitted by law revise the margin and applicable rate or rates of interest and pricing provided however that the Bank shall give the Borrower at least 30 days’ notice prior to any change in the rates or rates of interest payable”

78. Consequently, the 1st Respondent submitted that contrary to the Applicants allegation, the 1st Respondent had the right to vary the applicable rate or rates of interest payable, that the Applicants had not demonstrated the allegations that the applicable rate or rates of interest were varied at any time and that the 1st Applicant accepted the loan with full knowledge of its terms including the interest that would accrue to the principle amount.

79. That a dispute as to the amount of the outstanding loan cannot form a basis for granting an injunction. Reliance was placed in the case of Sammy Japheth Kavuku v Equity Bank Limited & Another [2014] eKLR, where the court held that:“The position adopted by the 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….”

80. Further reliance was placed in the case of John Edward Ouko v National Industrial Credit Bank Ltd [2013] eKLR, where the court opined as follows:“If courts are going to allow debtors to avoid paying their just debts by taking some of the defences I have seen in recent times for instance challenging contractual interest rate, banks will be crippled f not driven out of business altogether and no serious investors will bring their capital into a country whose courts are a haven for defaulters”

81. The 1st Respondent thus urged the court to find that the interlocutory injunction as sought by the Applicants on account of outstanding loan amounts and interest rate should not be granted hence the Application and the Plaint dated 1st August 2022 should be dismissed and/or struck out with costs to the 1st Defendant/Respondent.

82. The Plaintiff/Applicants filed Supplementary Written Submissions dated 4th August, 2023 and submitted that there had been new developments since before the objection to the sale of the guarantor’s properties could be heard and determined, the guarantor Anna Chebet Koech (now deceased) passed on 26th September, 2022 and her survivors are currently engaged in succession proceedings in a bit to obtain the right to deal with the property of the deceased and discharge her burden as a guarantor of the loan facility advanced to the 1st Plaintiff/Applicant.

83. The Applicants submitted that the loan advanced to the 1st Plaintiff/Applicant was not only secured by way of a charge against only the guarantor’s properties, that it was also secured by a fixed and floating debenture against all the assets of the borrower as evidenced under schedule 1 of the loan agreement executed between the parties hence the guarantor not being the principal debtor, the creditor was duty bound to first realize the security offered by the principal debtor and if the same was not enough to cover the default, then and only then could it proceed to exercise its statutory power of sale over the security offered by the guarantor.

84. It was their submission that this was not a case where the Plaintiffs were urging the court to hold that the creditor ought to have pursued the borrower before selling a charged property offered as security rather, in the instant case, both the borrower and the guarantor offered securities for the instant loan facility hence the creditor ought to first sell the security offered by the borrower before proceeding to the security offered by the guarantor as it was not in dispute that the 1st Applicant was the principal debtor and it is only right that its security be sold first.

85. They placed reliance on the case of Kenya Commercial Bank Ltd v Bernard Mwangi Nderi T/A & 6 others [2009] eKLR, where the principal debtor had offered his property as security for the loan advanced, however, instead of first selling the said security before pursuing the guarantors, the creditor declined to sell the security and opted to pursue the guarantors and the court held that the bank could only sue the guarantors for the balance of the outstanding loan after it had exhausted its power of sale.

86. The Applicants hence submitted that there being a security offered by the principal debtor which is a fixed and floating debenture over all the assets, the creditor in the instant suit did not want to first realize the said security of the principal debtor before moving on to that offered by the guarantor which was grossly unfair and both securities being available for disposal, justice only demands that the security of the principal debtor be sold first and if the same is not sufficient to make good the default, then the creditors can proceed to that of the guarantor.

87. That although the dispute involved the property of the deceased, the said deceased passed on without having been joined in the instant proceedings hence it was only fair and in accordance with the rules of justice that her estate be joined in the proceedings herein in order that they may be similarly be heard on merits.

88. I have carefully considered the applicants’ Notice of motion, grounds, supporting affidavit, further affidavit and submissions. I have also considered the opposing affidavit and submissions by the respondent and the statutory and case law relied on by both parties in their respective submissions.

89. The orders being sought in the motion are two-fold: Firstly, is the order seeking for execution of KCB payment plan and regularize the Plaintiff/Applicant’s Bank Account held at the 1st Defendant/Respondent’s and secondly an order of Temporary Injunction.

90. On whether the court should order the execution of KCB payment plan and regularization of the Plaintiffs/Applicants’ Account, the Applicants stated that they had formulated a payment plan by placing several of its prime properties for sale with the sole aim of paying off and regularizing its loan arrears with the 1st Defendant and commence the process of discharging the charged properties but the 1st Defendant/Respondent had since declined and/or ignored to consider the said payment plan and it was hell bent on selling the charged properties regardless.

91. The 1st Defendant/Respondent on the other hand stated that the Plaintiff/Applicants were seeking to renegotiate the terms of the loan through the court process by inviting the court to vary the terms of the agreement between the 1st Plaintiff/Applicant and the 1st Defendant/Respondent. That the Applicants sought that the court adopt a repayment plan proposed by the Applicants against the 1st Respondent, yet the said Applicants had not produced any payment plan before the court. That if the court was to allow the Applicants’ Application, not only would that amount to re-writing of the loan agreement but also an academic ruling considering that the said repayment plan does not exist and the 1st Respondent would be disabled from ever recovering the loan facilities.

92. Upon my study of the record, I find that indeed the Applicants/Plaintiffs did not annex the said payment plan as exhibit in the instant Application. I also find that the Applicants/Plaintiffs indicated that the 1st Defendant/Respondent declined the said proposed payment plan hence it is safe to say that there was no agreement between the Plaintiffs/Applicants and the 1st Defendant/Respondent on the payment plan.

93. It is trite law that courts cannot rewrite a contact between the parties. In the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] eKLR where the Court of Appeal held that:“…A Court of law cannot rewrite a contract between parties. The parties are bound by the terms of their Contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the Charge. As was stated by Shah JA in the case of Fina Bank Ltd –vs- Spares and Industries Ltd (2000) 1EA 52: -“It is clear beyond peradventure that save for those special cases where equity might be prepared to retrieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape a bad bargain.”

94. Having found that there was no agreement between the Plaintiff/Applicants and the 1st Defendant/Applicant concerning the payment plan, I find that the 1st Defendant/Applicant cannot be compelling to execute a non-existent agreement. Consequently, the sought to compel the 1ST Defendant/Applicant to Execute the KCB Payment plan must fail.

95. On whether a temporary injunction order against the Defendants should issue pending the hearing and determination of this suit, the law on granting of interlocutory injunctions is set out under order 40(1) (a) and (b) of the Civil Procedure Rules 2010 which provides that:“Where in any suit it is proved by affidavit or otherwise—(a)That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or [Rev. 2012] Civil Procedure CAP. 21 [Subsidiary] C17 – 165;(b)That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further."

96. It should also be noted that the power exercised by the courts in an application seeking temporary injunctive orders is discretionary. The discretion is guided by the principles established in the case of Giella v Cassman Brown & Company Limited (1973) E A 358, where the court expressed itself on the conditions that a party must satisfy for the court to grant an interlocutory injunction as follows:“First, 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."

97. I have perused the pleadings relied on by both parties in the instant Application, On the first limb on whether the applicant has shown a prima facie case with a probability of success, I note that the applicant bases her claim on this limb on the facts that the doctrine of frustration occasioned by the effects of Covid 19 pandemic that affected its business. That in a bid to redeem the properties from the impending sale, and save the property of the guarantor who was gravely ill, totally blind and undergoing dialysis on a regular basis, the 1st Applicant had formulated a repayment plan which entailed the sale of its other prime properties which proceeds would go directly to the 1st Respondent to make good of its default and commence the process of discharging the charged properties but the 1st Respondent had since declined and/or ignored to consider the said payment plan and it was hell bent on selling the charged properties regardless.

98. Thus, the Applicants submitted that the refusal to consider the 1st Applicant’s payment plan that involved the repayment of the loan through proceeds of the sale of its other prime properties was mala fides and it unfairly and illegally clogged equity of redemption under section 89 of the Land Act.

99. The 1st Defendant/Respondent on the other hand submitted that the Applicants admitted default and were instead asking the court to allow them more time to settle the loan arrears that is they are seeking to re-negotiate the terms of the loan agreement through the court process. That a court of law cannot re-write contracts between parties. That contrary to the Applicants’ allegations, exercise by the 1st Respondent of its statutory right of sale had not in any way clogged the guarantor’s right of redemption and that pursuant to section 89 (2) of the Land Act, the right of redemption cannot be limited except in accordance with the provisions of the Act.

100. As I had already stated earlier, a court of law cannot rewrite the contract between parties, however I also note that the Applicants raised the issue of the 1st Defendant/Respondent unilaterally varying the interest rates in contravention to the loan Agreement whereas the 1st Defendant/Respondent states that the Applicants have not provided evidence of the said unilateral varying of interest rates.

101. Without delving into the merits of the issue of interest rate variation, it is my opinion that this is a matter that can be settled when the court has had the opportunity to entertain both parties on what amounts to unilateral interest rate variation. In my view, the issue of interest rate variation, raise a prima facie case with a chance of success. To that extent, I am persuaded that the applicant has satisfied the first limb to warrant grant of temporary injunction. This is because the issues raised cannot be settled at this interlocutory stage. It is important to note that a prima facie case with a probability of success is not necessarily one that must succeed.

102. As to whether the applicants will suffer irreparable injury/loss that cannot be compensated by an award of damages if the application for temporary injunction is not allowed, the Respondent contend that even if an injunction is not granted, the Applicant will not suffer any substantial loss, that cannot be adequately compensated by an award of damages, since even if the Applicants were to succeed in the main suit, the most appropriate remedy in the circumstances would be a monetary award as the dispute was clearly quantifiable for the reason that the Applicants could clearly assign numbers to whatever loss they would suffer and that the Applicants had not shown that the 1st Respondent would not be in a position to pay the monetary awards should the court make a finding in their favour.

103. The Applicants on the other hand contended that the property in question that was subject of the 1st Defendant/Respondent’s statutory power of sale was that of the guarantor Anna Chebet Koech (Now Deceased) but that the principal debtor (the 1st Plaintiff/Applicant herein) in the instant suit was ready and willing to make good of its default and had already put up some of its prime properties for sale and all proceeds were intended to be channeled to the 1st Defendant which process had already begun.

104. That if the 1st Applicant was not allowed a chance to redeem the property by executing its payment plan which was well underway, it stood to suffer irreparable harm as its business would be crippled by the foreclosure and that if the relief sought do not issue, the Applicants would have been denied the chance to exercise their right to the equity of redemption as they would have been denied the chance to execute their repayment plan and make good the default.

105. The Applicants also stated that the guarantor Anna Chebet Koech (now deceased) having died on 26th September, 2022, her survivors were currently engaged in succession proceedings in a bit to obtain the right to deal with the property of the deceased and discharge her burden as a guarantor of the loan facility advanced to the 1st Plaintiff/Applicant hence if the injunction orders are not granted the deceased estate will suffer.

106. From the pleadings filed herein and the supporting documents, it emerges that the deceased guarantor Anna Chebet Koech was the 2nd Applicant’s mother and she decided to provide the suit parcels of land as security for the loan advanced by the 1st Respondent to the 1st Plaintiff/Respondent. Further that by the time the 1st Plaintiff/Applicant started being in default, it had repaid a substantial amount to the 1st Defendant/Respondent towards servicing the loan facilities.

107. I note that the subject matter in this suit relates to property that is subject to succession proceedings and likely to benefit the beneficiaries of the deceased guarantor. Accordingly, it cannot be said that the applicants will not suffer irreparable loss or injury if the application for temporary injunction is not granted at this stage.

108. As to in whose favour the balance of convenience lies, it is the respondent’s case that if the injunction is granted, it will inflict greater hardship on the Respondent because the outstanding debt shall continue to accumulate interest. On the other hand, if an injunction is refused and it is found that the applicants were entitled to an injunction, the respondent can easily compensate the applicants for any loss.

109. Taking all the above into consideration, it is my opinion that the balance of convenience tilts in favour of the Applicants as they stand to lose not only the suit property but that property which is subject of succession proceedings. Further it serves the interest of justice that this court exercises its discretion by conserving and preserving the suit property pending hearing and determination of the suit. I also note that the substantive succession cause in the estate of the deceased guarantor Anna Chebet Koech has already been filed and the 2nd Plaintiff/Applicant herein has already taken out limited letters of Administration for purposes of pursuing this matter.

110. Consequently, I find and hold that the applicants’ application dated 1st August, 2022 is merited. It is hereby granted in terms of the following order:i.That pending the hearing and determination of this suit, a temporary order of injunction is hereby issued restraining the defendant KCB Bank Kenya Limited whether by itself, its employees, servants and all such persons acting on its behalf from selling, offering for sale, further advertising for sale, threatening to sell or in any other way dealing adversely with the properties known as L.R No. 631/1582 (Minasa Centre, John Kerich Road) and Kericho Municipality Block 2/30 ACK Business Centre both situate at Kericho Town, Kericho County.ii.However, to avoid a situation where the applicants gets an injunction and goes to slumber, it is hereby ordered that the injunctive orders herein issued shall remain in force for a period not exceeding six months from the date of this ruling. The applicants must ready this suit for hearing and determination within the said period.iii.Costs of the Motion to abide the outcome of the main suit.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 31ST DAY OF OCTOBER, 2023. J.K. SERGONJUDGEIn the presence of:C/Assistant - RutohMbaya for the RespondentNo Appearance for the Plaintiff