[2015] KEHC 4551 (KLR)
The court found that the injunction granted on 17th October 2014 was expressly conditional, and the Plaintiff failed to comply with those conditions. The Defendant was therefore entitled to exercise its right of sale as stipulated in the order. Since the order of injunction was registered against the title of the...
Source-derived case information.
- Citation
- [2015] KEHC 4551 (KLR)
- Parties
- Plaintiff: Al-Jalal Enterprises Limited; Defendant: Gulf African Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 161 of 2014
- Procedural Posture
- Civil Case / Ruling on Application to Lift Injunction
- Outcome
- Application allowed. Injunction lifted and discharged. Costs to the Defendant.
- Judges
- DO Ogembo
- Legal Topics
- Injunction Discharge, Breach of Conditional Orders, Auction of Secured Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Al-Jalal Enterprises Limited
Plaintiff
Gulf African Bank Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Lift Injunction
Legal Issues
- 1 Whether the injunction granted on 17th October 2014 should be lifted and discharged due to breach of its conditions by the Plaintiff.
- 2 Whether the Defendant was entitled to sell the suit property after the Plaintiff's breach of the injunction conditions.
- 3 Whether the purchaser can register the transfer without a court order lifting the injunction.
Ratio Decidendi
The court found that the injunction granted on 17th October 2014 was expressly conditional, and the Plaintiff failed to comply with those conditions. The Defendant was therefore entitled to exercise its right of sale as stipulated in the order. Since the order of injunction was registered against the title of the suit property, and the purchaser could not register the transfer without a court order lifting the injunction, the court held that it was just and proper to lift and discharge the injunction. The absence of any response or opposition from the Plaintiff further supported the Defendant's application. The court accordingly allowed the application, lifting and discharging the...
Court Disposition
Application allowed. Injunction lifted and discharged. Costs to the Defendant.
Orders
- The injunction granted in the order made on the 17th of October 2014 is hereby lifted and discharged.
- Costs shall be for the Applicant (Defendant).
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 161 OF 2014
AL-JALAL ENTERPRISES LIMITED ::::::::: PLAINTIFF/APPLICANT
VERSUS
GULF AFRICAN BANK LIMITED :::::::: DEFENDANT/RESPONDENT
R U L I N G
The Notice of Motion application before the court is dated and filed in court on 13th May 2015 by the Defendant pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 51, Rule 1 of the Civil Procedure Rules. The application seeks to secure the following orders:-
The application be certified urgent and be heard ex-parte in the first instance.
An order do issue, specifically declaring that the injunction granted in the order made on the 17th October 2014 is hereby lifted and discharged.
Costs.
The application is premised on the following grounds:-
On the 17th of October 2014 the court granted an injunction in favour of the Plaintiffs.
The injunction was granted on certain conditions that were imposed on the Plaintiff.
It was a term of the order that if the Plaintiff breached any of the conditions of the injunction, the Defendant would be at liberty to sell the suit property.
The Plaintiff breached all the conditions of the said order.
Consequently the Defendant sold, by public auction, the suit properties on the 28th of April 2014 to Mega Wholesalers Limited.
The Plaintiff has severally admitted that it failed to meet the aforesaid conditions attached to the orders of 17th of October 2014 in particular on ground number 3 of the application of the application filed on the 22nd of April 2015.
The order of 17th of October 2014 was extracted and registered against the title of the suit property.
The purchaser has been unable to register the transfer executed in its favour without an order being specifically issued expressing that the injunction in the order of 17th of October 2014 has been lifted and discharged.
The application is supported by affidavit of Paul Ogunde sworn on 13th May 2015 which expounds on the above grounds.
The application was served upon the Respondent and there is an affidavit of service filed in court on 15th May 2015. However, there is no response by the Respondent.
I have considered the application. It is true that on 17th of October 2014 this court granted conditional injunction to the Respondent. Any failure by the Respondent to meet the said conditions automatically entitled the Applicant to sell the suit premises. The Respondent did not meet the said conditions so the Applicant sold the suit premises on 28th April 2014 vide public auction. However, the order of 17th of October 2014 was extracted and registered against the title of the suit property. This application seeks orders lifting that encumbrance.
I am satisfied that the application is merited. I allow it in the following terms:-
The injunction granted in the order made on the 17th of October 2014 is hereby lifted and discharged.
Costs shall be for the Applicant.
Orders accordingly.
READ, DELIVERED AND DATED AT NAIROBI
THIS 22ND DAY OF MAY 2015
E. K. O. OGOLA
JUDGE
PRESENT:
No appearance for the Plaintiff/Applicant
Mr. Ogunde for the Defendant/Respondent
Teresia – Court Clerk