Patrick Nzusa Mang’atu & Mapana Enterprises Ltd v Spire Bank Ltd, Keysian Auctioneers Ltd & David Thuvi [2021] KEHC 6578 (KLR) | Statutory Power Of Sale | Esheria

Patrick Nzusa Mang’atu & Mapana Enterprises Ltd v Spire Bank Ltd, Keysian Auctioneers Ltd & David Thuvi [2021] KEHC 6578 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram:  D. K. Kemei - J

CIVIL SUIT NO. 26 OF 2019

PATRICK NZUSA MANG’ATU.....................................1ST APPLICANT

MAPANA ENTERPRISES LTD......................................2NDAPPLICANT

VERSUS

SPIRE BANK LTD.........................................................1ST RESPONDENT

KEYSIAN AUCTIONEERS LTD................................2ND RESPONDENT

DAVID THUVI..............................................................3RD RESPONDENT

RULING

1. The ruling relates to two applications that shall be addressed chronologically. In the first application dated 27th September, 2019, as amended on 15th December, 2019, the Applicants’ counsel filed a notice of motion citing the provisions of section 3A of the Civil Procedure Act, Cap 21 laws of Kenya, Order 40 rules 1, 4 and 10; Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. What remains for determination are the prayers for:

a)An injunction to restrain the respondents whether by themselves, their agents, servants, charges or assigns or any other person claiming under them from advertising for sale, selling, transferring, charging, leasing, further charging, wasting, interfering or in any other manner howsoever dealing with the four properties being Firstly, Land Reference Number MATINYA/KASAINI/1258 & 1259  registered in the name of Patrick Nzusa Mwene Mang’atu & Naomi Mawia Mang’atu measuring 1. 1 Ha; Secondly, Land Reference Number  KYANGWITHYA/KAVETA/ 1694 registered in the name of Mapana Enterprises Limited measuring 0. 4047 Ha; Thirdly, land reference number MATINYANI/KASAINI/1254 registered in the name of Mapana Enterprises Limited measuring 2. 01 Ha; and finally Land Reference Number 28824 Mlolongo registered in the name of Michael Kimani Kariuki who is the applicant’s guarantor measuring 0. 3977 Ha;

b) An order of account by the 1st respondentpending the hearing and final determination of the main suit. There is also a prayer for costs of the application to be provided for.

2. The application is further supported by the affidavit of Patrick Nzusa Mang’atu sworn on 27th September, 2019 as amended on 15th December, 2019. The grounds of the application as disclosed on the face of the notice of motion are as follows:

a) In 2016 the 1st Defendant agreed to grant the 1st and 2nd Plaintiffs loan facilities for the sum of Kshs 46,158,000/.

b) The plaintiffs’ properties being Land Reference Numbers MATINYA/KASAINI/1258 & 1259  registered in the name of Patrick Nzusa Mwene Mang’atu & Naomi Mawia Mang’atu measuring 1. 1 Ha; Secondly Land Reference Number  KYANGWITHYA/KAVETA 1694 registered in the name of Mapana Enterprises Limited measuring 0. 4047 Ha; Thirdly, land reference number MATINYANI/KASAINI/1254 registered in the name of Mapana Enterprises Limited measuring 2. 01 Ha; as well as Land Reference Number 28824 Mlolongo registered in the name of Michael Kimani Kariuki who is the applicants’ guarantor measuring 0. 3977 Ha were registered as security for the loan facilities advanced to the 1st and 2nd Plaintiffs/applicants.

c) The plaintiffs fell into arrears because the 1st plaintiff fell ill and the parties mutually agreed to restructure the loan.

d) The suit properties have, without the knowledge of the applicants been advertised for sale by auction to be conducted on 1st and 2nd October, 2019.

e) The suit properties have been undervalued; the 1st respondent has charged exorbitant interest rates and penalties and has not availed accounts of the facilities advanced to the applicants.

f) If the sale is allowed to proceed, the applicants shall be greatly prejudiced and the loss will not be atoned by way of damages.

3. Vide affidavit filed on 27. 9.2019 as amended on 13. 12. 2019, the deponent who is the 1st applicant and with authority of the 2nd applicant, in addition to the grounds contained on the face of the notice of motion averred that independent valuation of the suit property ought to be carried out and further that notices ought to be served on the applicants.  It was averred that the 1st defendant is in breach of the new terms that were introduced by the loan restructure. To the deponent, the balance of convenience was in favour of granting the orders sought.

4. In reply John Wageche, a Senior Legal Officer of the 1st Respondent who read the application deposed vide affidavit dated 11th October, 2019 that the plaintiffs’ failed to repay sums that were due under the facility letter dated 6th July, 2018 and a statutory notice dated 15th January, 2019 was issued that did not elicit any response and hence the 1st respondent issued a 40-day notice to sell the properties on 7th May, 2019. It was averred that vide letter dated 5th June, 2019, the plaintiffs gave the 1st respondent authority to proceed with securities held by the bank, being Land Reference Numbers MATINYA/KASAINI/1254, 1258 and 1259 as well as KYANGWITHYA/KAVETA1694. It was averred that a 45-day notice to sell the securities on 1st and 2nd October, 2019 was issued to the plaintiffs and that there was current valuation of the properties before the slated sale. It was revealed that the properties Land Reference Numbers MATINYA/KASAINI/1258 and 1259 as well as KYANGWITHYA/KAVETA1694 were already sold and a memorandum of sale executed; however, Land Reference Numbers MATINYA/KASAINI/1254 was not sold. The deponent averred that the deposits of the sale were received by the 1st defendant and the same was credited into the plaintiff’s account. The deponent averred that an injunction could not be sought when the properties were already sold and therefore the prayers sought were overtaken by events and that the application ought to be dismissed.

5. In rejoinder, the 1st applicant vide affidavit deponed on 12th November, 2019, denied allowing the charged property to be auctioned and added that it was agreed by private treaty that some other properties would be sold in exchange for abandonment on the part of the 1st respondent of the statutory power of sale.The deponent took issue with what he termed a disregard of the loan restructure agreement on the part of the 1st respondent. The deponent took issue with the undervaluation of the charged properties and drew attention to the valuation dated 14. 6.2019 that was carried out on Land Reference Numbers MATINYA/KASAINI/1258 and 1259 by Crystal Valuers Ltd, where the report thereto incorrectly indicated that there were no improvements on the said land. The deponent challenged the respondents for charging the applicants for the charges and fees incurred by the three valuers being Crystal Valuers, Tysons Valuers and Landmark Valuers who were instructed by the respondents. It was averred by the deponent that no auction took place on the date and venue slated for the auction.

6. In further rejoinder, vide affidavit deponed on 14th January, 2020 the 1st applicant lamented that the suit properties were undervalued by the 1st respondent for purposes of conducting the sale in realization of their securities.

7. In the second application dated 7th November, 2019, the Applicants’ counsel filed a notice of motion citing provisions of section 3A of the Civil Procedure Act, Cap 21 laws of Kenya, Order 40 rules 1, 4 and 10; Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. It seeks the following prayers:

a) Spent

b) A declaration that the purported auction, sale and transfer of land reference Number MATINYA/KASAINI/1258 & 1259 registered in the name of Patrick Nzusa Mwene Mang’atu & Naomi Mawia Mang’atu measuring 1. 1 Ha and Secondly Land Reference Number KYANGWITHYA/KAVETA 1694 registered in the name of Mapana Enterprises Limited measuring 0. 4047 Ha was a nullity;

c) Spent

d) An order of stay of the intended sale purported to emanate from the unlawful and or unprocedural auction conducted on the 1st October, 2019, payment of the purchase price, transfer and/or any other dealings on Land Reference Number MATINYA/KASAINI/1258 & 1259 and Secondly, Land Reference Number KYANGWITHYA/KAVETA 1694 by the respondents, their agents and or servants pending the hearing and determination of the suit herein.

e) The 1st respondent be ordered to render an audited report on the rent collected from the tenant Safaricom PLC on Land Reference Number MATINYA/KASAINI/1259 and file the same in court within 45 days and the rent amount be taken to offset any loan balance.

f) That the respondents be compelled to produce the proceedings or a report of the auction conducted on the 1st October, June, 2019 (sic).

g) The costs of the application.

h) Any other order that the court deems fit.

pending the hearing and final determination of the main suit. There is also a prayer for costs of the application to be provided for.

8. The application is further supported by the affidavit of Patrick Nzusa Mang’atu sworn on 7th November, 2019. The grounds of the application as disclosed on the face of the notice of motion are as follows:

a) In 2016 the 1st respondent agreed to grant the 1st and 2nd applicants loan facilities for the sums of Kshs 55,761,107/- and Kshs 46,158,000/-.

b) Charges were registered on the properties Land Reference Numbers MATINYA/KASAINI/1258 & 1259  registered in the name of Patrick Nzusa Mwene Mang’atu & Naomi Mawia Mang’atu measuring 1. 1 Ha; Secondly, Land Reference Number  KYANGWITHYA/KAVETA 1694 registered in the name of Mapana Enterprises Limited measuring 0. 4047 Ha; Thirdly, land reference number MATINYANI/KASAINI/1254 registered in the name of Mapana Enterprises Limited measuring 2. 01 Ha; Fourthly,  Land Reference Number Ruiru/Ruiru East Block 3/1601 registered in the names of Patrick Nzusa Mwene Mang’atu as well as Land Reference Number 28824 Mlolongo registered in the name of Michael Kimani Kariuki who is the applicants’ guarantor measuring 0. 3977 Ha.

c) The plaintiffs fell into arrears because the 1st plaintiff fell ill and the parties mutually agreed to restructure the loan and more specifically one of the terms was that the 1st respondent would directly collect rent from the tenant Safaricom PLC on plot Land Reference Number MATINYA/KASAINI/1259 and further that the sale of the properties would be by private treaty. It was stated that the sale by private treaty was agreed jointly and advertised in the daily nation of 13th May, 2019.

d) Despite there being an undertaking, the 1st respondent resiled on its earlier position and instructed its auctioneers to advertise the suit properties for sale by auction to be conducted on 2nd October, 2019.

e) The properties had been developed with tenants and yet were undervalued resulting in a sale at a throwaway price; that the auction notice indicated that the properties had no developments, quite contrary to the reality on the ground.

f) No auction was witnessed.

g) That the applicants were forced to foot the bill of the valuers fees and charges in respect of three auctioneers being Crystal, Tyson and Landmark who were instructed by the 1st respondent.

h) The applicants were apprehensive that the suit properties were in danger of being fraudulently transferred by the respondents and that the applicants will be prejudiced as there were no notices served, there was no valuation carried out and no public auction had taken place.

i) If the sale is allowed to proceed, the application would be rendered nugatory and the interests of the applicants in the suit property would be defeated; that the respondents should not be seen to benefit from an illegality.

j) That the respondents would suffer no prejudice if the orders sought are granted.

9. Vide affidavit filed on 11th November, 2019, the deponent who is the 1st applicant and with authority of the 2nd applicant, in support of the grounds contained on the face of the notice of motion annexed a copy of a bank statement indicating that the proceeds of rent from Safaricom PLC in respect of Land Reference Number MATINYA/KASAINI/1259were credited to the 1st respondent (PNM 3); a copy of the advertisement of sale by private treaty (PNM 4) and the advertisement of sale by public auction (PNM5). The deponent pointed out that any purchaser of the suit property was not an innocent purchaser in view of the fact that there were developments on the suit land. The deponent lamented that the suit property Land Reference Number Kyangwithya/Kaveta/1694was sold at less than half of its initial purchase price and with collusion so as to deny the applicants their equity of redemption. The deponent also took issue with what he termed the respondent’s reneging on the sale by private treaty agreement and opting for sale by auction that the applicants seek to be stopped by this court.

10. In reply is an affidavit deponed on 18th November, 2019 by John Wageche where he averred that the loan amount was Kshs. 48,603,839. 00/- and that the plaintiffs defaulted in the repayment of the same. It was averred that there were current valuation reports before the suit properties were sold and that the auction of the properties proceeded on 1st and 2nd October, 2019 as scheduled. It was reiterated that properties namely Land Reference Numbers MATINYA/KASAINI/1258 and 1259 as well as KYANGWITHYA/KAVETA1694 were sold on 1st October, 2019. It was averred that the auction was attended by five bidders and that the properties were vacant; there was no Safaricom mast over the same; there was no information of any lease created over the charged properties and that the 1st respondent’s interest ranked in priority over any other interest over the suit properties.

11. On record is a replying affidavit deponed by the 3rd respondent on 25th January, 2020. He averred that he purchased the properties Land Reference Numbers MATINYA/KASAINI/1258 and 1259 during a public auction that was held on 1st October, 2019. He averred that he was issued with the transfer documents and thereafter he paid the stamp duty whereupon the registration of the transfer into his names was halted by a court order. The deponent averred that he was a bonafide purchaser for value of the suit property and would suffer irreparably if the purchase is invalidated as he had paid for them but will now be prevented from utilizing them. The court was urged to discharge the orders of stay so that he could complete his transaction as the plaintiffs could be compensated by damages if their case succeeds.

12. The application was canvassed vide written submissions. Learned counsel for the applicants in their submissions dated 15th June, 2020 framed four issues for determination. Firstly, whether or not the power of sale had accrued to the 1st respondent; secondly, whether the suit properties were undervalued; thirdly, was the 3rd Defendant/Respondent an innocent purchaser for value without notice?  Finally, whether the applicants deserve the orders sought. In respect of the 1st issue, counsel placed reliance on section 96, 97 and 104 of the Land Act and assailed the 1st respondent for failing to carry out a valuation in respect of land reference Number 28824 in Mlolongo, in breach of section 97(2) of the Land Act. While appreciating the case of Nyando Enterprises Ltd v Barclays Kenya Limited (2018) eKLR,as well as section 96(3) (c) and (1) of the Land Act, it was submitted that no notice of sale was served on the tenants on the land Reference Number MATINYA/KASAINI/1254or on the wife of the 1st applicant or on Mr Michael Kimani Kariuki who was the applicant’s guarantor and the registered owner of the land L.R 28824 Mlolongo. In respect of the 2nd issue, counsel pointed out that the valuation of the suit property was done before the intended sale and therefore going by the ratio in the case of Mbuthia v Jimba Credit Finance Corporation & Another (1986-89) EA 340,a sale that was conducted at a fraudulent undervalue ought to be set aside. In respect of the 3rd issue, it was submitted that the fact that the properties Land Reference Number MATINYA/KASAINI/1258 & 1259were sold as vacant although in reality the same contained developments thereon, then the purchase was tainted and whoever partook of the property could not be said to be an innocent purchaser for value; that the purchaser could be imputed to have been aware that the property was dishonestly indicated as vacant and the sale ought to be vacated. Reliance was placed on the Court of Appeal case of Said Ahmed v Manasseh Denga & Another (2019) eKLRwhere it was held that a sale conducted in violation of statutory and contractual obligations being service of notice warranted an injunction to stop the sale pending the hearing of the main suit. In respect of the 4th issue, it was submitted that the applicants deserve the orders sought because firstly, statutory notices under section 96 of the Land Act 6 of 2012 was not issued; Secondly, current valuation of the suit property was not conducted and hence the suit premises were undervalued and finally the applicants’ equity of redemption was prematurely extinguished by fraud, misrepresentation and dishonesty. Learned counsel cited the case of McFoy v United Africa Limited (1961) 3 All ER 1169 in submitting that the equity of redemption could only be extinguished by a valid sale and because the sale was as a result of an illegal auction, it ought not to be allowed to stand. In placing reliance on the case of Giella v Cassman Brown (1973) EA 358, it was submitted that the applicants met the threshold for grant of an injunction.

13. In reply, the Respondent’s Counsel opposed the application. In their submissions filed on 27th January, 2020, learned counsel framed five issues for determination; firstly, whether the sold properties and the properties yet to be sold were undervalued; Secondly, whether the plaintiffs ae entitled to an order for injunction; Thirdly, whether the plaintiffs/applicants are entitled to an order for preservation of their interests in the said properties; Fourthly, whether the sale of Kyangwithya/Kaveta 1694 and Matinyani/Kasaini 1258 and 1259 was lawfully undertaken and finally whether the court should issue an order directing the government lands registrar to cancel and/or stop the transfer and restore the status quo of 30th September, 2019. In respect of the 1st issue, it was submitted that there ought to be actual evidence of undervaluation of the properties, which evidence was not presented before the court; reliance was placed on the cases of Zumzum Investment Ltd v Habib Bank Limited (2014) eKLRandOlkasasi Ltd v Equity Bank Limited (2015) eKLR.In respect of the 2nd issue, while placing reliance on the case of Giella v Cassman Brown Co Ltd (1973) EA 358it was submitted that the applicants are indebted to the respondents with no indication on how they intend to settle the debt and therefore no injunction could be issued where the debt is not disputed. It was submitted that damages would adequately compensate the applicants. In respect of the 3rd issue, in placing reliance on the case of Moses Ngenye Kahindo v Agricultural Finance Corporation HCCC 1044 of 2001it was submitted that the suit properties were given as security with the conscience that they would be sold in case of default and therefore the applicants are not entitled to an order for preservation as there is no proof that the properties were undervalued. In respect of the 4th issue, it was submitted that the properties Kyangwithya/Kaveta 1694 and Matinyani/Kasaini 1258 and 1259 were sold on the 1st October, 2019 and it was emphasized that the equity of redemption is lost at the fall of the hammer. Counsel took issue with the allegation of fraud in the conduct of the auction that to counsel was not proven.  In respect of the 5th issue, while placing reliance on the case of Mwangangi Mutula Mutua v Equity Bank Limited & Others (2019) eKLRas well as section 99 of the Land Act No. 6 of 2012 it was submitted that the remedy to the applicants lie in damages and not in cancellation of the transfer and or restoration of the status quo of 30th September, 2019.

14. I have carefully considered the Applicants’ applications as well as the Respondents replies together with the affidavit evidence and the documents attached. I have also considered the written submissions of Counsel. The primary reply of the Respondent’s Counsel to the Applicants’ applications is that it is a dispute in value of the properties that were sold with no dispute as to a debt owed and this was not reason enough to stop an auction or transfer of properties that were sold in an auction. I have carefully considered the Respondents contentions and I agree with the submissions that an application to court in respect of remedies sought by a chargor and chargee is brought under the legal regime of the Land Act, 2012 and more specifically section 97 that provides for the duty of a chargee exercising power of sale. The section is reproduced as follows;

(1)  A chargee who exercises a power to sell the charged land, including the exercise of the power to sell in pursuance of an order of a court, owes a duty of care to the chargor, any guarantor of the whole or any part of the sums advanced to the chargor, any chargee under a subsequent charge or under a lien to obtain the best price reasonably obtainable at the time of sale.

(2)  A chargee shall, before exercising the right of sale, ensure that a forced sale valuation is undertaken by a valuer.

(3)  If the price at which the charged land is sold is twenty-five per centum or below the market value at which comparable interests in land of the same character and quality are being sold in the open market—

(a)  there shall be a rebuttable presumption that the chargee is in breach of the duty imposed by subsection (1); and

(b)  the chargor whose charged land is being sold for that price may apply to a court for an order that the sale be declared void, but the fact that a plot of charged land is sold by the chargee at an undervalue being less than twenty-five per centum below the market value shall not be taken to mean that the chargee has complied with the duty imposed by subsection (1).

(4)  It shall not be a defence to proceedings against a chargee for breach of the duty imposed by subsection (1) that the chargee was acting as agent of or under a power of attorney from the chargor or any former chargor.

(5)  A chargee shall not be entitled to any compensation or indemnity from the chargor, any former chargor or any guarantor in respect of any liability arising from a breach of the duty imposed by subsection (1).

(6)  The sale by a prescribed chargee of any community land occupied by a person shall conform to the law relating to community land save that such a sale shall not require any approval from a Community Land Committee.

(7)  Any attempt by a chargee to exclude all or any of the provisions of this section in any charge instrument or any agreement collateral to a charge or in any other way shall be void.

15. I note that the applicants have not tabled an independent report to give their version of what should be the value of the property. They merely use the yardstick of the value of the property as at the time of obtaining the loan. Be that as it may, it would be premature to accept a valuation report as gospel truth without interrogating the persons who undertook the impugned valuation via cross-examination so as to be able to determine whether or not the valuation carries the day and if it is found that the valuation was improper then this will aggravate any damages due for any wrongful sale. A number of cases including Zum Investment Limited v Habib Bank Limited (2014) eKLRhave held that undervaluation is not a reason to stop the sale by auction as there is a remedy under section 99. (4) of the Land Act that states as follows: -

99(4) ‘’A person prejudiced by an unauthorized, improper or irregular exercise of the power of sale shall have a remedy in damages against the person exercising that power”

16. To this extent therefore any prayer to stop the sale cannot be granted.

17. The Applicants’ other concern is that the 1st respondent went ahead to sell the suit land via auction and yet there was an agreement to sell the said properties via private treaty. There are agreements that are annexed to the supporting affidavit that in my view would require proof as to whether indeed there is consensus ad idem. However, the circumstances created are that the 1st respondent resiled on its earlier position and going by the case of Said Ahmed v Manasseh Denga & Another (2019) eKLRwhere it was held that a sale conducted in violation of statutory and contractual obligations being service of notice warranted an injunction to stop the sale, it would appear that there is reason to convince the court to grant the order to stop the sale.

18. What then is the situation on the ground? The 1st respondent has contended that the sale took place and therefore the prayer to stop the sale is overtaken by events. As can be gleaned from the pleadings, the sale was scheduled to happen on 2nd October, 2019. As of today, it is almost a year and a half from the scheduled date of the auction and to assume the sale has not occurred would be a stretch of imagination. Counsel for the 1st respondent had in fact indicated that the sale already occurred and if this is the position then the court would appear to be making orders in futility as there is nothing in existence to be stopped by the court.

19. How about the order for account? This would mean that the provisions of Order 20 have to be met. Order 20 Rule 1 provides that: -

Where a plaint prays for an account, or where the relief sought or the plaint involves the taking of an account, if the defendant either fails to appear or does not after appearance by affidavit or otherwise satisfy the court that there is some preliminary question to be tried, an order for the proper accounts with all necessary inquiries and directions usual in similar cases shall forthwith be made.

Under Order 20, Rule 4, it is stated:-

On hearing of the application, the court may, unless satisfied that there is some preliminary question to be tried, order that an account be taken and may also order that any amount certified on taking the account to be due to either party be paid to him within a time specified in the order.

20. The import of the above provision is that the court cannot order for account if there is a preliminary question to be tried.  The respondents have disputed the existence of a mast erected on one of the properties by Safaricom Plc as claimed by the plaintiffs and at a preliminary stage it would be premature to make a final conclusion on a matter that requires proof. The court has to consider the facts and be cautious not to make a final decision on the facts alleged by the parties at the interim stage. See Mwangangi Mutula Mutua & Others v Equity Bank & Others (2019) eKLR.

21. In the case of Office Quip Services Limited v Cooperative Bank of Kenya Limited HCCC 22 of 2005 [2005] eKLR, the court stated that,

“It is now an accepted principle in these cases that a dispute as to accounts is no ground for granting an injunction. This being so, the principle also imposes upon the Defendant/Respondent mortgagee a corresponding duty to show that it had not only a right to vary or increase the rate of interest, but that the variation and increase in the rate of interest was not exercised dishonestly or for an improper motive and was not made arbitrarily, capriciously or unreasonably. The Plaintiff/Applicant has complained that the rates of interest have been increased by as much as 59% - 69%. In the circumstances, it will serve the interest of justice to both parties if the Defendant/Respondent would prepare an account showing in accordance with the manner of keeping of ordinarily bankers books.”

22. I agree with the Applicants’ Counsel that there has to be compliance with the Land Act before the statutory right to sell can be exercised and this is one of the grounds relied upon by the applicant in the quest for a temporary injunction to stop the sale. Have there been grounds raised for stoppage of sale?  In the circumstances there is none because the sale has been attested to probably have occurred.

23. For the avoidance of doubt, the grounds that warrant the grant of temporary injunction are a matter of judicial notice. As per the case of Giella v Cassman Brown (1973) EA 358,the applicant is required to demonstrate that there is a prima facie case with likelihood of success; that there is likelihood of irreparable injury that cannot be atoned by way of damages and that the balance of convenience sways in favour of grant of an injunction. In addition, a court ought to be wary of making a final determination of the rights of the parties at a preliminary stage. On the prima facie case test, it is undisputed that the applicant has not met the test because firstly the sale could have occurred and secondly there is an outstanding debt whose payment the court cannot cull yet there is no indication of how the same is to be paid. On the injury test, the applicants stood to lose their properties that they claimed were undervalued and sold in realization as securities for the loan that was advanced to them. Yet again, if the property was undervalued, there is a statutory remedy for wrongful sale under section 99(4) of the Land Act that the applicants may pursue.  Therefore, an injunction is not the appropriate remedy. On the balance of convenience, the balance sways in favor of payment of monies owed as opposed to uncertainty as to when the lender will recover their monies. The applicants therefore have not met the threshold for grant of the injunction sought.

24. All that remains then is a trophy in form of a report on the auction that occurred and which resulted in the sale of the suit property. This is the only prayer that is successful.

25. In view of the forgoing, I find the Applicants’ applications successful only to the extent that a report on the auction is merited. The following orders are hereby made:

a) The 1st Respondent shall within a period of 45 days from the date of this order provide a detailed report of the auction that was conducted on 1st and 2nd October, 2019.

b) The costs of the applications shall abide the outcome of the main suit.

c) Parties to set down the main suit for hearing on priority basis.

It is so ordered.

DATED AND DELIVERED AT MACHAKOS THIS 3RD DAY OF JUNE, 2021.

D. K. KEMEI

JUDGE