[2004] KEHC 2000 (KLR)
The court found that the plaintiff had not entered into a firm written agreement with the defendant for the purchase of the property and that the deposit paid had already been refunded. The defendant, as chargee, was entitled to sell the property at the best price available, and its right to do so had not been...
Source-derived case information.
- Citation
- [2004] KEHC 2000 (KLR)
- Parties
- Plaintiff: Ayub Shero Baluch; Defendant: Savings & Loan Kenya Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 239 of 2003
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Injunction
- Outcome
- application dismissed with costs
- Legal Topics
- Injunctive Relief, Specific Performance, Chargee Rights, Sale of Mortgaged Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ayub Shero Baluch
Plaintiff
Savings & Loan Kenya Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to an order restraining the defendant from transferring the suit property pending determination of the suit.
- 2 Whether the plaintiff has established a prima facie case for grant of an interlocutory injunction.
- 3 Whether damages would be an adequate remedy for the plaintiff if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiff had not entered into a firm written agreement with the defendant for the purchase of the property and that the deposit paid had already been refunded. The defendant, as chargee, was entitled to sell the property at the best price available, and its right to do so had not been challenged. The court held that the plaintiff's loss, if any, could be adequately compensated by damages, and there was no evidence that the defendant would be unable to pay such damages. Consequently, the court concluded that this was not a case warranting the grant of a restraining order against the chargee, and the application for an injunction was dismissed.
Court Disposition
application dismissed with costs
Orders
- The application for an injunction is dismissed with costs to the defendant.
- A copy of the ruling to be supplied to both advocates upon payment of charges.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL SUIT NO. 239 OF 2003
AYUB SHERO BALUCH……………………………….PLAINTIFF
-VERSUS
SAVINGS & LOAN KENYA LIMITED…….....…………DEFENDANT
R U L I N G
Application dated 3/10/2003 seeks to restrain the defendant from transferring the property plot No. Mombasa/Block IX/165. The grounds set out in the application that the plaintiff has already purchased and paid for the suit premises and no agreement for sale has already been executed by the defendant also that the plaintiff/applicant would suffer untold damage.
There is supporting affidavit of Ayuta Chero Baluch, the plaintiff which shows that he negotiated with defendant for price of Sh.11,400,000 which offer was accepted. Applicant paid 1,140,000/= deposit. It is sworn that before any contract could be executed the defendant’s advocate called for an increase of purchase price in breach of the agreement reached. That his family has developed sentimental value of the property. This suit is for specific performance of the said sales agreement. The defendant is the chargee of this property and was in the process of exercising the chargee's right of sale by private treaty with leave of the court.
The defendant obtained an offer from the plaintiff and after sometime he obtained a better offer. As chargee the defendant is bound to sell at the best price.
The plaintiff has not entered into a firm written agreement with the Defendant. The deposit paid has been refunded to the plaintiff’s advocates.
In the above circumstances it is my view that this is not a case warranting restraining orders against the chargee. The right of chargee to sell has not been challenged. The plaintiff claim can be compensated with damages, which can easily be calculated. I therefore find that if the plaintiff were to succeed his loss would be compensated with damages, which can easily be calculated.
I therefore find that if the plaintiff were to succeed his loss would be compensated in damages adequately. It has not been alleged that the Defendant an established financial house, would be unable to pay such damages. The court is therefore not inclined to restrain the defendant to exercise powers lawfully granted under the charge.
The application is dismissed with costs.
Dated this 12th day of February, 2004.
JOYCE KHAMINWA
J U D G E
12/2/2004
Ruling read in presence of:-
Mr. Mugambi
Mr. Were – h/b for
Mr. Were
I apply for a copy of the ruling.
Court
Let the same be supplied upon payment of charges to both advocates.
JOYCE KHAMINWA
J U D G E