[2022] KEHC 9935 (KLR)

Chemjor v Kenya Commercial Bank Limited (Commercial Civil Case 15 of 2019) [2022] KEHC 9935 (KLR) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9935 (KLR)

Republic of Kenya

In the High Court at Eldoret

Commercial Civil Case 15 of 2019

RN Nyakundi, J

July 12, 2022

Between

John Kibet Chemjor

Applicant

and

Kenya Commercial Bank Limited

Respondent

Ruling

1. The applicant moved this court vide a Notice of motion dated April 8, 2019seeking the following orders;a)Spentb)That this honourable court be pleased to grant an order of injunction restraining the respondent whether by itself or its authorised agents, auctioneers and or any of them or otherwise from offering for sale, selling by public auction or private treaty of the parcel of land namely Eldoret/Municipality/Block 11/390 pending the hearing and interpartes hearing of this application and thereafter the main suit.c)That an interlocutory order do issue compelling the respondent to supply the statement s of accounts to the applicantd)Costs

2. The application is based on the grounds contained therein and the affidavit in support of the application.

3. The applicant instituted the suit by way of plaint dated April 8, 2019. In the main suit he seeks a permanent injunction against the respondent with regards to the parcel of land namely Eldoret/municipality/block 11/390. He also seeks an injunction against the respondent blocking him from exercising his right of redemption.

4. The respondent opposed the application vide a grounds of opposition and a replying affidavit.

Applicant’s Case 5. The applicant’s case is that the conditions for an injunction were set out in the case ofGiella vs Cassman Brown (1973) EA 358 as follows;a)An applicant has to show a prima facie case with probability of success.b)An interlocutory injunction will not normally be granted unless the applicant shall suffer irreparable injury which would not be adequately compensated by an award of damages andc)If the court is in doubt it will decide the application on a balance of convenience.

6. He also cited the case ofNguruman Limited versus Jan Bonde Nielsen and 2 others CA No. 77 of 2012(2014) eKLR on the application of the conditions above separately.

7. While relying on the definition of a prima facie case in Mrao Ltdvs First American Bank of Kenya Limited & 2 others(2003) eKLR the applicant submitted that his production of the certificate of title shows that if the suit land is sold he shall lose the property and suffer irreparable loss. He cited the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLRin support of the submission that he will suffer irreparable harm.

8. The applicant contended that the respondents increased their interest rates without informing him and he has not refused to pay the amounts claimed. He seeks to have the accounts reconciled so that the correct amount due can be determined.

9. He cited the case of Joseph Oduor Anode vs Kenya Red Cross Society, High Court Civil Suit No. 66 of 2009(2012) eKLR and submitted that they follow the event. He asked that the application be allowed.

Respondent’s Case 10. The respondent opposed the application and laid out the facts leading up to the present suit. The applicant approached the respondent for a banking facility worth Kshs. 2,700,000/- in 2014. The same was granted and he executed a guarantee and indemnity document, offering the title of Eldoret /municipality / block 11/390 as security. The respondent disbursed the sum to the applicant pursuant to the terms of the charge.

11. The applicant failed to service the loan and as at March 24th 2017 the account was in arrears of a sum of Kshs. 2,260,896. 75. The failure to service the loan was in breach of clause 1 of the charge and the respondent then served statutory notices on the applicant as prescribed in law.

12. The applicant filed a case in the chief magistrates’ court in Eldoret CMCC 28 of 2017 seeking stay of execution and an application dated 23rd January 2017 seeking to stop the sale of the land. The application was dismissed and he then filed another application dated September 20, 2017 seeking stay pending appeal of the ruling. He was directed to deposit Kshs. 3,000,000/- as a condition of stay which he failed to abide by. He then proceeded to file the present application to stop auctioning of the land.

13. The present application is res judicata according to the respondent. It is entitled to exercise statutory power of sale and the applicant has never settled the debt. He is merely voiding to pay the debt and shall not be prejudiced by the exercise of the powers of sale as he has the remedy of damages available. It is the respondent’s case that the balance of convenience lies in its favour.

14. The respondent cited the case of Ripples Limited vs Mucuba, HCCC No. 4522 of 1992 on the equitability of obtaining an injunction to restrain a breach of covenant. Counsel for the respondent cited the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR in support of the submission on irreparable injury and balance of convenience. The applicant prays that the application be dismissed.

15. Upon perusing the application, the responses therein and the submissions I have identified the following issue for determination;

a) Whether the orders for a temporary injunction should issueResolutions 16. It is trite as to the purpose and criteria of an injunction. “The function of an interim injunction is to “hold the ring” pending final determination of a claim (United States of America v Abacha [2015] 1 WLR 1917). The basic underlying principle of that function is that the court should take whatever course seems likely to cause the least irremediable prejudice to one party or another (National Commercial Bank Jamaica Limited v Olint Corp Ltd (Practice note) [2009] UKPC 16 at [17]). Test It requires that there be at least a serious question to be tried and then refers to the adequacy of damages for either party and the balance of justice (or convenience): American Cyanamid Co v Ethicon Ltd [1975] AC 396. The threshold for obtaining an injunction is normally lower where wrongs have already been committed by the defendant: Secretary of State for Transport and HS2 Limited v Persons Unknown [2019] EWHC 1437 (Ch) at [122] to [124]. Snell’s Equity states at §18-028: “In cases where the defendant has already infringed the claimant’s rights, it will normally be appropriate to infer that the infringement will continue unless restrained: a defendant will not avoid an injunction merely by denying any intention of repeating wrongful acts.”

17. In the case of Nguruman Limited v Jane Bonde Nielsen and 2 OthersNRB CA Civil Appeal No. 77 of 2012 [2014] eKLR, the Court of Appeal reiterated the conditions for grant of an interim injunction settled Giella v Cassman Brown [1973] EA 360 as follows:In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;(a)establish his case only at a prima facie level,(b)demonstrate irreparable injury if a temporary injunction is not granted, and(c)ally any doubts as to (b) by showing that the balance of convenience is in his favour.These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. (See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86). If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.

18. Therefore, the court needs to determine whether the applicant has proven the following; Whether the applicant has a prima facie case

Whether the applicant shall suffer irreparable damage

Balance of convenience

Whether the Applicant has a Prima Facie Case 19. In determining whether there exists a prima facie case the court runs the risk of determining the suit by determining the fate of the subject matter. That notwithstanding, the applicant has chosen to make his bed and therefore must lie in it.

20. In Nguruman Limited v Jan Bonde Nielsen & 2 others (supra), the Court of Appeal agreed with the definition of a prima facie case in the Mrao case and stated:“We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”

21. The facts leading up to this current application arose from the attempts by the respondent to exercise a statutory power of sale. It is not disputed that the applicant obtained a lien facility from the applicant and the sum was disbursed to him. It is also not in dispute that he is in breach of the charge and that he has not satisfied the debt herein. The bone of contention is the exercise of the power of sale. He also disputes the amount of the arrears. I shall first delve into the issue of statutory power of sale.

22. Statutory power of sale is exercised in accordance with the Land Act. Section 90 of the Land Act provides;(1)If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be in default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.Section 96(2) of the Land Act provides;(1)Where a chargor is in default of the obligations under a charge and remains in default at the expiry of the time provided for the rectification of that default in the notice served on the chargor under section 90(1), a chargee may exercise the power to sell the charged land.(2)Before exercising the power to sell the charged land, the chargee shall serve on the chargor a notice to sell in the prescribed form and shall not proceed to complete any contract for the sale of the charged land until at least forty days have elapsed from the date of the service of that notice to sell.Rule 15 of the Auctioneers Rules, 1997 provides as follows: -Immovable propertyUpon receipt of a court warrant or letter of instruction the auctioneer shall in the case of immovable property—a)record the court warrant or letter of instruction in the register;b)prepare a notification of sale in the form prescribed in Sale Form 4 set out in the Second Schedule indicating the value of each property to be sold;c)locate the property and serve the notification of sale of the property on the registered owner or an adult member of his family residing or working with him or where a person refuses to sign such notification, the auctioneer shall sign a certificate to that effect;d)give in writing to the owner of the property a notice of not less than forty-five days within which the owner may redeem the property by payment of the amount set forth in the court warrant or letter of instruction;e)on expiry of the period of notice without payment arrange sale of the property not earlier than fourteen days after the first newspaper advertisement

23. I have perused the annexures to the replying affidavit of the respondent dated May 6, 2021. As per annexures BK6, BK7 and BK8 it is clear that the applicant was served with the necessary notices in compliance with the law.

24. The applicant claims he made part payments but has not provided any evidence of the same. The present stay is sought to prevent the respondent from exercising statutory power of sale pursuant to the failure of the applicant to satisfy the conditions of the stay issued in the chief magistrates’ court.

25. The applicant has failed to prove there exists aprima facie case. As stated in the Nguruman case (supra):If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.

26. Therefore, it follows that the application fails due to the lack of aprima facie case. I shall however briefly address the other limbs required. The applicant has not proven that the injury they will suffer cannot be remedied by damages. Further, the balance of convenience lies in dismissing the application as the interest of the loan has the potential of rising to a higher value than that of the security thereby making it difficult for the respondent to recover the sums due to it. Obviously enough, a consideration of the applicant’s prospects of success based on the facts of the case fails to establish a serious question to be tried and the likelihood of any such question succeeding at the scheduled trial. In my considered view the balance of convenience as evaluated between the parties tends to tilt more to the respondent bank. In this context there is no wrongful conduct which has been commenced by the respondents threatening the rights of the applicant to occasion a right of an injustice or injury not compensated by way of damages. The court has not been given very good reasons why it should order an injunction pending trial notwithstanding the evidence before it is untested and probably incomplete.

27. In the premises, the application is hereby dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 12TH DAY OF JULY, 2022. R. NYAKUNDIJUDGE