[2017] KEHC 3388 (KLR)
The court found that the plaintiff failed to establish a prima facie case for the grant of an interlocutory injunction. The 5th defendant, National Bank of Kenya, exercised its statutory power of sale after the 1st defendant defaulted on the loan, and the property was subsequently sold to the 2nd defendant, who then...
Source-derived case information.
- Citation
- [2017] KEHC 3388 (KLR)
- Parties
- Plaintiff: Agnes Cherotich Ngeny (Suing on behalf of the estate of Sophia Chelimo Keryo, Deceased); Defendant: Anne Cherotich Chepkwony Alias Kimeto; Defendant: Franklin Bett; Defendant: Raymond Cheruiyot; Defendant: Zakayo Biegon; Defendant: National Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 87 of 2016
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed with costs
- Legal Topics
- Statutory Power of Sale, Injunctive Relief, Laches, Mortgage Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Cherotich Ngeny (Suing on behalf of the estate of Sophia Chelimo Keryo, Deceased)
Plaintiff
Anne Cherotich Chepkwony Alias Kimeto
Defendant
Franklin Bett
Defendant
Raymond Cheruiyot
Defendant
Zakayo Biegon
Defendant
National Bank of Kenya
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case for the grant of an interlocutory injunction restraining the sale or interference with land parcel KERICHO/KAPSOIT/1603.
- 2 Whether the sale of the suit property by the 5th defendant (bank) was lawful under its statutory power of sale.
- 3 Whether the plaintiff is guilty of laches in bringing the application.
Ratio Decidendi
The court found that the plaintiff failed to establish a prima facie case for the grant of an interlocutory injunction. The 5th defendant, National Bank of Kenya, exercised its statutory power of sale after the 1st defendant defaulted on the loan, and the property was subsequently sold to the 2nd defendant, who then subdivided and sold it to the 3rd and 4th defendants. The court noted that any alleged irregularities in the sale process could only be determined at a full hearing. Furthermore, the court observed that the plaintiff delayed in bringing the application and was therefore guilty of laches. Since the property had already been sold, granting an injunction would serve no practical...
Court Disposition
application dismissed with costs
Orders
- The plaintiff's application for injunction is dismissed with costs to the 2nd, 3rd, 4th, and 5th defendants.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
ENVIRONMENT AND LAND CASE NO. 87 OF 2016
AGNES CHEROTICH NGENY
(Suing on behalf of the estate of Sophia
Chelimo Keryo(Deceased)...............................................................................................…PLAINTIFF
VERSUS
ANNE CHEROTICH CHEPKWONY ALIAS KIMETO....................................................1ST DEFENDANT
FRANKLIN BETT………………………....................................................……......…….2ND DEFENDANT
RAYMOND CHERUIYOT…….....................................................................................…..3RD DEFENDANT
ZAKAYO BIEGON …………………............................................................……………..4TH DEFENDANT
NATIONAL BANK OF KENYA……….......................................................……..………..5TH DEFENDANT
RULING
By a Notice of Motion dated 8th November 2016 brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1,2 and 3 of the Civil Procedure Rules the plaintiff seeks an order for injunction to restrain the 2nd, 3rd, 4th and 5th respondents from selling, trespassing into, entering, erecting buildings or otherwise interfering with land parcel no. KERICHO/KAPSOIT/1603 until this suit is heard and determined. The application is based on the grounds stated on the Notice of Motion and the plaintiff’s supporting affidavit.
The plaintiff has instituted this suit against the defendants in her capacity as the daughter in law and administrator of the estate of Sophia Chelimo Keryo (Deceased). The plaintiff avers that sometime in 1993, the deceased guaranteed her granddaughter (the 1st respondent) a loan of Kshs. 1,000,000 from the 5th respondent (National Bank of Kenya) by providing her title deed in respect of land parcel number KERICHO/KAPSOIT/1603 as security. By the time of her death in 2003, the loan had not been repaid. The plaintiff tried to establish the status of the loan from the 5th defendant and when she did not get a response she approached the 2nd defendant who was a member of Parliament to assist her to negotiate with the bank for repayment of the outstanding arrears.
The plaintiff further avers that in 2009 she learnt that the 2nd defendant had taken advantage of the plaintiff and her family’s desperation and vulnerability and bought the suit land from the bank after which he sub-divided it and sold it to the 3rd and 4th defendants.
In its rejoinder, the 5th defendant states that it sold the suit land in exercise of its statutory power of sale following the 1st defendant’s failure to repay the loan. On his part the 2nd defendant maintains that he bought the suit land from the bank in a public auction after which he sub-divided and sold it to the 3rd and 4th defendants.
What emerges from the above facts is that the 1st defendant was indebted to the 5th defendant and according to the affidavit of the 5th defendant’s Recoveries Manager, is still indebted to the tune of over 1,780,496. This figure is however disputed by the 1st defendant as she alleges to have made substantial payments. Under the circumstances, the plaintiff has not established a prima facie case with a probability of success. If indeed the 5th defendant sold the suit property in exercise of its statutory power of sale as alleged, then it was well within its rights to do so. However, if there were any irregularities with regard to the sale as alleged in the plaint, these would only be proved at a hearing after listening to the evidence of both parties.
I am not persuaded that the plaintiff has made out a case for the grant of an injunction in accordance with the principles laid down in the celebrated case ofGiella V Cassman Brown 1973 E.A 358. What is also not clear is why the 1st defendant has played such a passive role in redeeming the suit land and why the plaintiff took such a long time to institute this suit in order to safeguard the estate of the deceased. In any event the property has already been sold by the bank and it would not make any sense to issue an injunction against the 5th defendant as the court would be issuing orders in vain. I therefore agree with counsel for the respondents that the plaintiff is guilty of laches.
I have carefully considered the application together with the all the affidavits, annextures, pleadings and submissions of both parties and come to the inescapable conclusion that the plaintiff’s application lacks merit and is hereby dismissed with costs to the 2nd, 3rd, 4th and 5th respondents.
It is so ordered.
DATED, SIGNED AND DELIVERED AT KERICHO THIS 29TH DAY OF SEPTEMBER, 2017
J.M ONYANGO
JUDGE
IN THE PRESENCE OF:
Miss Kitur for Koko for the 1st Defendant
Mwita for the 2nd, 3rd and 4th Defendants
No appearance for the Applicant
Court Assistant; Rotich