Introduction to the Pattern of Abuse

Lending money on the security of land is one of the most common commercial transactions in Kenya. Where a borrower requires capital, they approach a bank for a loan, and the bank provides the loan secured by a charge over the borrower’s property. The borrower defaults, and the bank moves to recover its money by invoking its statutory power of sale. In turn, the borrower decides to use the Courts to indefinitely prevent the bank from selling the charged property by filing an application for an injunction and obtains an interim injunction order that subsists for at least a year. After a year of enjoying the injunctive relief, the Court delivers a ruling dismissing the application.

Following the ruling lifting the injunctive order and allowing the sale, the bank advertises the charged property for sale, and the borrower, with record speed, proceeds to the relevant appellate Court to file an application for stay pending appeal. A status quo order is given, and subsequently, the Court of Appeal dismisses the application for stay for want of merit.

Unrelenting, the borrower sponsors a party to file suit and an application for injunction over the charged property, strategically defeating the doctrines of sub judice and res judicata, and secures an ex parte injunction order pending the determination of the ap plication. The application is dismissed, and by this time, at least three (3) years, or even a decade, have lapsed, leaving the bank unable to sell the charged property, and the cycle continues to the Court of Appeal.

In Kivanga Estates Ltd v National Bank of Kenya Ltd [2017] eKLR, the Court of Appeal was confronted with precisely this scenario. The debtor had filed four separate suits over a period of 27 years, moving from Embu to Meru to Nairobi, each time resurrecting the same challenge to prevent the bank from realising its security. Each suit sought, in one form or another, the same injunctive re lief. The Court of Appeal was unsparing in its description of what had occurred, stating –

“There is no greater duty for the court than to ensure that it maintains the integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by, amongst other measures, stopping litigations brought for ulterior and extraneous considerations.”

The Statutory Power of Sale as a Self-Executing Right

The statutory power of sale is conferred on a chargee by the Land Act (Cap. 280). When a borrower defaults on a secured loan and fails to remedy that default after the requisite notices are given, the bank is entitled by law to sell the charged property and apply the proceeds toward the settlement of the outstanding debt.

Despite strict compliance with the substance and procedure governing the statutory power of sale, banks routinely find their right to sell restrained by injunctions obtained by borrowers who have no genuine defence to the enforcement proceedings.

As the Court of Appeal observed bluntly in Mrao Ltd v First Ame ican Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR), if Courts allow debtors to avoid paying their just debts through tac tical litigation, banks will be crippled, and no serious investors will bring their capital into a country whose Courts are a haven for defaulters.

Why Does This Constitute an Abuse?

The courts have defined the concept with precision. In Trust Bank Ltd v Amin Company Ltd & Another (2000) KLR 164, the Court described a vexatious proceeding as one that lacks bona fides and is hopeless or offensive, tending to cause the opposite party unnecessary anxiety, trouble, and expense. An abuse of process is, in brief, a misuse of the Court’s own machinery.

The Court of Appeal in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] KECA 453 (KLR) captured this precisely: a person who abuses process is interested only in accomplishing some improper purpose collateral to the proper object of the process. The action is not brought in good faith and unfairly burdens the other party.

When a colluding third party enters the picture, filing a fresh suit in their own name over the same charged property, the abuse deep ens. The third party has no genuine independent interest in the charged property. Instead, it acts as a proxy, deployed to provide a fresh face for a claim that has already been exhausted. The Courts have been alive to this stratagem and have tools to address it.

a) The Lapse of Injunctions

One of the most practical and underappreciated tools available to a bank confronted with a stale injunction is Order 40, Rule 6 of the Civil Procedure Rules. The rule provides that an interlocutory injunction lapses automatically if the suit in which it was granted is not determined within twelve months from the date of grant, unless the Court orders otherwise for sufficient cause.

The rule was designed precisely to address the mischief of a party who goes to slumber on a suit after obtaining an injunction, deliberately failing to prosecute the case while the injunction does its work of frustrating the opponent.

The Court of Appeal confirmed this in Erick Kimingichi Wapang’ana & another v Equity Bank Limited & another [2015] eKLR, stating that the rule applies regardless of how the injunction order is word ed. Even if an injunction says it will last “until the case is heard and determined,” it will still automatically expire after twelve months if the case is not concluded and no extension is sought. The wording of the order cannot override the law.

b) The Undertaking as to Damages

Every time a Court grants an interlocutory injunction, it typically requires the applicant to give an undertaking as to damages. This is the applicant’s formal commitment to the Court, not to the bank, that if the injunction is later found to have been wrongly granted, the applicant will pay compensation for the prejudice caused by the grant of the interlocutory injunction.

The Court of Appeal settled this in Chatur Radio Service v Pronogram Ltd [1994] eKLR, holding that the object of insisting upon an undertaking as to damages is to protect the defendant against loss occasioned by the wrongful grant of an injunction. The Court was also clear on a point of significant practical importance: the damages recoverable under the undertaking are not capped at the KES 2,000 ceiling imposed by Section 64 of the Civil Procedure Act (Cap. 21) The undertaking operates entirely independently of Section 64. It is uncapped, enforced through the Court’s equitable jurisdiction, and may be pursued by way of attachment or committal.

When a colluding third party enters the picture, filing a fresh suit in their own name over the same charged property, the abuse deepens. The third party has no genuine independent interest in the charged property. Instead, it acts as a proxy, deployed to provide a fresh face for a claim that has already been exhausted. The Courts have been alive to this stratagem and have tools to address it.

c) Security for Costs

Where a Plaintiff or its proxy is a shell company with no substantial assets or a nominal party with no genuine independent interest in the charged property, the Court may, on application by the Defendant, order the Plaintiff to furnish security for costs as a condition for continuing the proceedings. Failure to provide the security results in the suit being dismissed pursuant to Order 26 of the Civil Procedure Rules.

d) The Court’s Inherent Jurisdiction

Beyond the specific procedural remedies described above, Courts retain a broad inherent jurisdiction to make whatever orders are necessary to protect the administration of justice. The Court of Ap peal affirmed this in Kemboi v Chepkwony & 3 others [2026] KECA 398 (KLR).

e) The Vexatious Litigant Declaration

For the most persistent cases, where conventional remedies have failed to halt the cycle of abusive litigation, Kenya has enacted specific legislation designed to address the problem. The Vexatious Proceedings Act, most recently amended in December 2023, empowers the High Court to declare a person to be a vexatious litigant.

Once that declaration is made, no suit may be filed by or on behalf of that person in any Court without the prior leave of the High Court. Leave will not be granted unless the Court is satisfied that the proposed suit is not an abuse of its process and that there exists a prima facie basis for bringing it. Any suit filed in breach of that requirement is automatically void, and any attempt to continue such proceedings constitutes contempt of Court.

In Attorney General v David Oscar Owako [2023] KEHC 19858 (KLR), the High Court made such a declaration against a litigant who had filed eight suits, five miscellaneous applications, and a Court of Appeal proceeding, most of them still pending, and who had demonstrated a pattern of filing applications seeking the recusal of judicial officers across multiple Courts. The Court found that although every person has the right to access justice under Article 48 of the Constitution, that right is not absolute and may be justifiably limited under Article 24 in cases involving vexatious litigants.

There is one critical practical limitation: the application must be brought by the Attorney-General. A bank cannot apply directly in its own name. The correct course of action is to compile a com prehensive dossier containing every suit filed, every injunction obtained, every undertaking given, the outcome of each proceeding, and to make a formal referral to the Attorney General’s office, inviting it to exercise its statutory power. The decision to proceed rests with the Attorney-General, but the quality and organisation of the material presented will significantly influence that decision.

Final Thoughts

What banks need is to remain alert, well-prepared, and proactive in pursuing all available legal remedies, rather than passively waiting for each frivolous application and suit to run its full course only to end up in dismissal in the bank’s favour.