[2020] KEHC 983 (KLR)
The court found that the defendant had issued all requisite statutory notices as required by the Land Act, supported by documentary evidence including a certificate of posting. The plaintiff failed to demonstrate any defect in the notices or that the redemption period was insufficient. The court held that the...
Source-derived case information.
- Citation
- [2020] KEHC 983 (KLR)
- Parties
- Plaintiff: Balaji Flowers Limited; Defendant: Paramount Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Case E522 of 2020
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed with costs to the defendant
- Legal Topics
- Injunctions, Statutory Power of Sale, Statutory Notices, Redemption Periods, Valuation of Security, Mortgage Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Balaji Flowers Limited
Plaintiff
Paramount Bank Limited
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the defendant served the requisite statutory notices under the Land Act before exercising the power of sale.
- 2 Whether the redemption notice provided the plaintiff with the required 45-day period.
- 3 Whether the valuation of the property was at an undervalue and if a proposed buyer affects the sale process.
Ratio Decidendi
The court found that the defendant had issued all requisite statutory notices as required by the Land Act, supported by documentary evidence including a certificate of posting. The plaintiff failed to demonstrate any defect in the notices or that the redemption period was insufficient. The court held that the alleged undervaluation and existence of a proposed buyer did not constitute valid grounds to restrain the statutory power of sale. The plaintiff, having offered the property as security, could be adequately compensated by damages. The balance of convenience favored the defendant, who was entitled to recover its outlay for the benefit of its depositors. Consequently, the plaintiff...
Court Disposition
application dismissed with costs to the defendant
Orders
- The plaintiff's application for injunction is dismissed.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL DIVISION
COMMERCIAL CASE NO. E522 OF 2020
BALAJI FLOWERS LIMITED.......... PLAINTIFF
VERSUS
PARAMOUNT BANK LIMITED... DEFENDANT
R U L I N G
1. Before me is a Motion on Notice dated 30/11/2020 brought, inter alia,under Order 40 of the Civil Procedure Rules.In the Motion, the plaintiff seeks orders of injunction to restrain the defendant from auctioning the properties known as LR. No. Nyandarua/Gilgil/931and motor vehicle registration no. KBZ 153X.
2. The application was brought ex-parte under a certificate of urgency on 8/12/2020 and sought to stop an auction scheduled for tomorrow 11/12/2020. I certified the same urgent and directed that it be served for inter-partes hearing this morning at 9. 00am.
3. At the hearing, the defendant had filed a replying affidavit in opposition to the application. I heard arguments from both Mr. Wasonga,Learned Counsel for the plaintiff and Mr. Kihiko,Learned Counsel for the defendant. I have also carefully considered the averments of the parties on record.
4. The plaintiff’s case is that the defendant did not serve the statutory notice under section 90 of the Land Act, 2012and a notice under section 96(2) of the Land Act.The plaintiff also alleges that the redemption notice dated 3/10/2020 was defective, in that it gave the plaintiff less period than the 45 days required. It was further alleged that the valuation given to the suit property is at an undervalue and that there is a proposed buyer of the property at US$2. 5million.
5. The defendant has on its part contended that it has issued all the required notices and that its right to exercise the statutory power of sale has arisen.
6. This is an injunction application. The plaintiff is required to establish a prima facie case with a probability of success, that if the orders sought are not granted it will suffer loss that cannot be compensated by an award of damages. If the Court is in doubt, it will determine the matter on a balance of convenience. See Giela v. Cassman Brown case.
7. There is no dispute as to advances. There is also no dispute that there has been default. The evidence is all there for everyone to see. The defendant has alleged that the amount due is in excess of US$1. 7 million.
8. I have looked at the documents produced by the defendant. I am satisfied that the defendant has shown that it issued the requisite notices under the law. The defendant produced a certificate of posting as “MR8”. The address used has not been denied.
9. From the evidence on record, I am satisfied that the necessary notices have been issued by the defendant. The contention of under valuation and existence of a ready buyer are but mere excuses. To my mind therefore, the plaintiff has not demonstrated a prima facie case with any probability of success.
10. As regards the loss to be suffered, having offered its property as security for the advances, the plaintiff had converted the property into a merchantable commodity. The value thereof is known and the defendant can pay off the same.
11. As to the balance of convenience, the same tilts in favour of allowing the defendant to recover its outlay for the benefit of its depositors.
12. Accordingly, the application is without merit and I dismiss the same with costs to the defendant.
DATEDand DELIVEREDat Nairobi this 10th day of December, 2020.
A. MABEYA, FCIArb
JUDGE