[2021] KEHC 12564 (KLR)
The court determined that it could not make substantive orders affecting the suit property, as the purchaser from the auction—a necessary party—had not been joined to the proceedings. The court directed that the purchaser be enjoined within 14 days, with the bank responsible for making the requisite application, and...
Source-derived case information.
- Citation
- [2021] KEHC 12564 (KLR)
- Parties
- Applicant: Benchmark Management Limited; Respondent: Stanbic Bank Kenya Limited; Respondent: Keysian Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Case 56 of 2020
- Procedural Posture
- Commercial Case / Ruling on Interlocutory Injunction Application
- Outcome
- Interim orders to subsist; purchaser to be joined as party within 14 days; mention after 30 days.
- Legal Topics
- Interlocutory Injunctions, Joinder of Parties, Auction Sales, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benchmark Management Limited
Applicant
Stanbic Bank Kenya Limited
Respondent
Keysian Auctioneers
Respondent
Procedural Posture
Commercial Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the respondents from dealing with the suit property.
- 2 Whether the court can make orders affecting a third party purchaser who is not yet joined to the proceedings.
- 3 Whether the sale of the suit property was properly conducted and if there was under valuation.
Ratio Decidendi
The court determined that it could not make substantive orders affecting the suit property, as the purchaser from the auction—a necessary party—had not been joined to the proceedings. The court directed that the purchaser be enjoined within 14 days, with the bank responsible for making the requisite application, and that interim orders restraining dealings with the property would remain in force until further orders. This approach ensures that the rights of all interested parties, including third parties not originally named in the suit, are protected and that the court does not issue orders in breach of the rules of natural justice or due process.
Court Disposition
Interim orders to subsist; purchaser to be joined as party within 14 days; mention after 30 days.
Orders
- The purchaser of the suit property shall be enjoined in this suit within 14 days.
- The bank shall make the requisite application to join the purchaser within the stipulated period.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
COMMERCIAL CASE NO. 56 OF 2020
BETWEEN
BENCHMARK MANAGEMENT LIMITED...........................PLAINTIFF/APPLICANT
AND
STANBIC BANK KENYA LIMITED.........................1ST DEFENDANT/RESPONDENT
KEYSIAN AUCTIONEERS........................................2ND DEFENDANT/RESPONDENT
R U L I N G
1. By a Motion on Notice dated 7/10/2020 brought under Order 51 Rule 1of the Civil Procedure Rules, sections 1A, 1B, 3A and 63(e)of the Civil Procedure Act, Cap 21 Laws of Kenya,the applicant sought an injunction to restrain the respondents and/or their agents/servants/employees from entering, trespassing, transferring and/or in any way whatsoever dealing with Apartment No. A, Kita Gardens Apartments erected on LR. No. 209/3221 Kileleshwa, Nairobi (“the suit property”).
2. The Motion was supported by the affidavits of Ben R. N. Mbai, the Director of the applicant sworn on 7/10/2020 and 30/11/2020, respectively. The applicant’s contention was that it is the registered owner of the suit property. That on 30/9/2020, the 2nd respondent, on the instructions of the 1st respondent, purported to sell by public auction the suit property.
3. Before considering this Motion, I note that a third party is involved in this matter who is not party to these proceedings. This is borne by the averment in paragraph 22of the replying affidavit of Elisha Nyikulisworn on 13/11/2020, wherein she avers that the suit property was sold on 30/9/2020.
4. I note from the aforesaid averment that the particulars of the purchaser of the suit property and the purchase price were not disclosed. There is already an allegation of under valuation of the property.
5. Before the Court can consider the matter and make any orders that may adversely affect a 3rd party who is not a party to the proceedings, I direct that the purchaser of the property be enjoined in this suit within 14 days. It is only after his/her joinder that the matter can be effectively dealt with.
6. Accordingly, the interim orders in force will continue to subsist until further orders of the Court.
7. Since the particulars of the purchaser are only known to the bank, let the bank make the requisite application to join him or her within the stipulated period. The matter will be mentioned after 30 days of this ruling.
It is so ordered.
DATEDand DELIVEREDat Nairobi this 20th day of January, 2021.
A. MABEYA, FCIArb
JUDGE