[2008] KEHC 761 (KLR)
The court found that although the previous suits in Machakos were not heard and determined, and thus the matter was not res judicata, the applicant had not acted diligently in pursuing her rights. The property had already changed hands, having been purchased by the third defendant at a public auction and registered...
Source-derived case information.
- Citation
- [2008] KEHC 761 (KLR)
- Parties
- Plaintiff: Anne Ndunge Bitok; Defendant: Agriculture Finance Corporation Ltd; Defendant: Garam Investment (A Firm); Defendant: Oloolua Holdings Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 348 of 2007
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Statutory Power of Sale, Mortgage Irregularities, Injunctive Relief, Res Judicata, Auction Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne Ndunge Bitok
Plaintiff
Agriculture Finance Corporation Ltd
Defendant
Garam Investment (A Firm)
Defendant
Oloolua Holdings Limited
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the exercise of the statutory power of sale by the first defendant was valid under the relevant statutes.
- 2 Whether the applicant is entitled to a mandatory injunction to cancel the sale and registration of the property.
- 3 Whether the suit is res judicata due to previous litigation between the parties.
Ratio Decidendi
The court found that although the previous suits in Machakos were not heard and determined, and thus the matter was not res judicata, the applicant had not acted diligently in pursuing her rights. The property had already changed hands, having been purchased by the third defendant at a public auction and registered in its name. The court held that the applicant was not entitled to a mandatory injunction to cancel the sale or registration, as the equities did not favor her and the requirements for such relief were not met. The application was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 348 of 2007
ANNE NDUNGE BITOK...........................................................................................PLAINTIFF
VERSUS
AGRICULTURE FINANCE CORPORATION LTD .………………….…. 1STDEFENDANT
GARAM INVESTMENT (A FIRM)…….........................................…………2ND DEFENDANT
OLOOLUA HOLDINGS LIMITED……….…............................................…..3RD DEFENDANT
RULING
Application dated 06. 07. 2007.
Order XXXIX Rule 2, 2A and 3 Civil Code Section 3A Civil Procedure Act.
Orders sought, restraining order against the Defendants or any of them from causing registration of conveyance of LR. No. 12715/103 or taking occupation of the said land or in any other manner interfering with Applicants ownership and possession thereof and in the alternative mandatory injunction the sale on 21. 03. 2006 in purported exercise of the first Defendant Statutory power of sale be cancelled.
The application is based on grounds stated that the mortgage under which the purported exercise of power of sale is a nullity under Section 59 of Transfer of Property Act. Auctioneers Rules was not complied with. No valuation was done to establish the market value. The advertisement of the auction was published hardly a day before the auction. It is stated that the third Defendant intends to register a conveyance and to take possession of the premises unless stopped by the court. And that the Plaintiffs case has good chance of success.
At the time the application came up for hearing, Counsel for applicant submitted that as it appeared from the pleadings that the conveyance had already been registered. She was arguing only on alternative prayer No. 4, that the sale be cancelled.
The supporting affidavit shows that the charge under section 20 A.F.C. Act which was governed by section 59 of Transfer of Property Act, it was illegal for the first Defendant to exercise powers of sale in the circumstances.
The application is opposed by first and second Defendants who were represented by Mr. Koech with replying affidavit sworn by Rashid Ngaira, he submitted the suit was res judicata indicated and named two suits in Machakos Court. Mr. Kamau for 3rd Defendant also opposed the application saying there were 2 other cases in Machakos. He relied on affidavit of Livingstone Njogu Gitau. Counsel submitted that the applicant obtained orders on exparte basis and did nothing about the case.
In reply counsel for Applicant said that the issues of validity of the charge were not raised. She said that on Machakos cases one order lapsed after expiration of 14 days and the other was dismissed for want of prosecution. Therefore these two suits and applications were never heard and determined. It is clear then that present suit is not resjudicata. Authorities Ms Mulwa cited are AFC Act Cap 323 Section 20 of which provides that written notification delivered shall for all purposes be deemed to be a mortgage of land comprised herein executed by borrower to secure the loan. She cited also; HCC No. 371 of 2003 Eccon Construction & Engineering Ltd. –vs- Giro Commercial Bank Ltd & Another.
In that case it was contended that the mortgage was invalid because of being obtained by fraud and coercion and there were some irregularities in its execution. After a long analysis of the case law and the facts the court eventually found that the charge was invalid and that the Applicant had shown a prima facie case orders were granted.
The replying affidavit of first Defendants emphasizes that the applicant is guilty of non disclosure of previous suits and that her conduct in filing suit after another against the first Defendant is an abuse of Court process.
The 3rd Defendant caused an affidavit to be sworn by Livingstone Njogu Gitau in which it was sworn that the property subject of this suit was purchased by it at a public auction on 21. 03. 2006. The transaction was proper and legal. The land was registered in favour of 3rd Defendant on 05. 06. 23007. In the circumstances, the Applicant has no case against the 3rd Defendant.
I have perused the material laid before the court and am satisfied that the applicant has not acted diligently in pursuant of her rights and although the previous suits were not heard and determined it is clear she has had proper notice and as the property has changed hands, she is not entitled to mandatory injunction as she prays.
This application is dismissed with no order as to costs.
DATED this 10th day of November 2008.
JOYCE N. KHAMINWA
JUDGE