[2012] KEHC 669 (KLR)
The court found that the chargee's (Kenya Commercial Bank Limited) interest should have been disclosed at the time of settling the terms for execution of the decree. The failure to disclose does not defeat the chargee's interest, even if a sale subsequently took place. The court allowed the application as prayed,...
Source-derived case information.
- Citation
- [2012] KEHC 669 (KLR)
- Parties
- Plaintiff: Charles Okoyo Jakamumbo; Defendant: Martin Ochieng Oketch; Applicant: Majid Said; Applicant: Warda Omar; Respondent: Kenya Commercial Bank Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 29 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Unopposed Notice of Motion
- Outcome
- Application allowed as prayed.
- Judges
- F Tuiyott
- Legal Topics
- Execution of Decree, Chargee Interest, Priority of Security, Sale of Charged Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Okoyo Jakamumbo
Plaintiff
Martin Ochieng Oketch
Defendant
Majid Said
Applicant
Warda Omar
Applicant
Kenya Commercial Bank Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Unopposed Notice of Motion
Legal Issues
- 1 Whether the chargee's interest should have been disclosed at the time of settling the terms for execution of the decree.
- 2 Whether the sale of the property could defeat the chargee's interest.
Ratio Decidendi
The court found that the chargee's (Kenya Commercial Bank Limited) interest should have been disclosed at the time of settling the terms for execution of the decree. The failure to disclose does not defeat the chargee's interest, even if a sale subsequently took place. The court allowed the application as prayed, recognizing the priority of the chargee's interest over the sale.
Court Disposition
Application allowed as prayed.
Orders
- The Notice of Motion dated 23rd July 2012 is allowed as prayed.
- The chargee's interest is recognized and not defeated by the subsequent sale.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
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CHARLES OKOYO JAKAMUMBO ………………………..….….. PLAINTIFF
V E R S U S
MARTIN OCHIENG OKETCH …………...……………………… DEFENDANT
AND
MAJID SAID & WARDA OMAR …………...………………….. APPLICANTS
AND
KENYA COMMERCIAL BANK LIMITED ............ RESPONDENT/APPLICANT
RULING
Before Court is the Notice of Motion dated 23rd July 2012. It is not opposed. The Court allows the application as prayed. It is satisfied that at the time of settling the terms for the execution of the decree in Msa CMCC No. 4080 of 2002 the chargees interest should have been disclosed. That interest cannot be defeated by the sale that took place thereafter.
Dated and delivered at Mombasa this 9th day of October, 2012.
F. TUIYOTT
JUDGE
Dated and delivered in open court in the presence of:-
Jumbale for Munyao for Respondent
Court clerk - Benta
F. TUIYOTT
JUDGE