[2019] KEHC 1280 (KLR)
The court found that the applicant was aware of the intended sale well in advance, as evidenced by the statutory notice dated 17/9/2018 and the newspaper advertisement. The applicant's delay in approaching the court, only a day before the scheduled sale, undermined its claim for urgent injunctive relief. The court...
Source-derived case information.
- Citation
- [2019] KEHC 1280 (KLR)
- Parties
- Applicant: Donmack Holdings Ltd; Respondent: Kenya Women Micro Finance Bank Ltd
- Court
- High Court
- Court Station
- High Court at Nyahururu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 12 of 2019
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- interim injunction declined; application to be heard inter partes
- Judges
- RPV Wendoh
- Legal Topics
- Injunctive Relief, Statutory Notice Requirements, Power of Sale, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Donmack Holdings Ltd
Applicant
Kenya Women Micro Finance Bank Ltd
Respondent
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant was served with the mandatory 45 days statutory notice before the intended sale of the charged property.
- 2 Whether the applicant is entitled to a temporary injunction restraining the respondent from exercising its power of sale.
- 3 Whether the application for injunction was made with undue delay.
Ratio Decidendi
The court found that the applicant was aware of the intended sale well in advance, as evidenced by the statutory notice dated 17/9/2018 and the newspaper advertisement. The applicant's delay in approaching the court, only a day before the scheduled sale, undermined its claim for urgent injunctive relief. The court was not satisfied that the applicant had established a prima facie case for the grant of a temporary injunction at this interlocutory stage, especially in the absence of full facts and without hearing the respondent. Consequently, the court declined to grant the interim orders sought until the matter could be heard inter partes.
Court Disposition
interim injunction declined; application to be heard inter partes
Orders
- Prayer 2 of the Notice of Motion for temporary injunction is declined at this stage.
- Matter to proceed for inter partes hearing.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAHURURU
CIVIL CASE NO.12 OF 2019
(FORMERLY OF ELC.NYAH.52 OF 2019)
DONMACK HOLDINGS LTD.......................PLAINTIFF/APPLICANT
- V E R S U S –
KENYA WOMEN MICRO
FINANCE BANK LTD.......................DEFENDANT/RESPONDENT
R U L I N G
Donmack Holdings Ltd, the plaintiff/applicant filed this suit against the defendant/respondent, Kenya Women Micro Finance Bank Ltd (KWFT). Together with the suit is filed a Notice of Motion under certificate of urgency dated 29/10/2019 seeking an order of temporary injunction to restrain the respondent from selling or alienating Nyandarua/Kipipiri/4304 in exercise of the chargee’s power of sale. Peter Karebe Ndonga has sworn an affidavit stating that they have been servicing the loan given to the applicant, they were not served with mandatory statutory notice and no accounts have been made of payments made to the respondent.
The file was placed before this court on 29/10/2019 afternoon and this court directed the respondent be served.
Today, 30/10/2019, Mr. Onkangi, counsel for the applicant claims to have served the Operations Manager of the respondent one Kendy at 4. 30 p.m. at the Nyahururu Branch. The respondent has not appeared and the court appreciates that service was made late although the respondent should have appeared to seek time to respond.
From the application, it is not clear whether the applicant was served with the 45 days statutory notice and if so, when? The applicant has annexed a copy of the Daily Nation in which the advertisement to sell the property was made. The applicant alleges to have seen the advertisement on 25/10/2019 but evidently, the News Paper advert included an advertisement for sale of other properties on 18/10/2019. It means that the advertisement was made before 18/10/2019. The annexture PKM.3 does not show the date of the News Paper which I believe was intentionally left out. This court cannot tell when the applicant knew of the intended sale.
On record, I have also seen the first statutory notice to the applicant dated 17/9/2018.
I am convinced that the applicant was aware of this intended sale early enough and it beats logic why the applicant came to court a day before the due date for sale. The court is not seized of all the facts surrounding this transaction. I will be reluctant to grant any. Interim orders at this stage before I hear the respondents. I therefore decline to grant prayer 2 of the Notice of Motion until the matter is heard interpartes.
Dated, Signed and Delivered at NYAHURURU this 30thday ofOctober,2019.
………………………………..
R.P.V. Wendoh
JUDGE
PRESENT:
Mr. Onkangi for applicant
Nyagah – court assistant