[2021] KEHC 52 (KLR)

[2021] KEHC 52 (KLR)

The court held that it could not grant the injunction sought by the plaintiff because the purchaser of the suit property, who acquired it at a public auction, was not joined as a party to the proceedings. Granting an injunction in the absence of the purchaser would violate the rule of natural justice (audi alteram partem). The court further found that, although the bank's actions in selling the property while a stay of proceedings was in force were questionable, the lapse of the interlocutory injunction by operation of law under Order 40 Rule 6 meant there was no subsisting injunction at the time of sale. However, since the substratum of the bank's appeal was lost by the sale, the court...

Citation
[2021] KEHC 52 (KLR)
Parties
Plaintiff: Juliet Kirsten Pernile Duckworth; Defendant: Michael John Stanhope Duckworth; Defendant: Geohut Limited; Defendant: I&M Bank Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
23 September 2021
Case Number
Commercial Civil Case 485 of 2017
Procedural Posture
Commercial Civil Case / Ruling on Interlocutory Injunction and Stay Application
Outcome
Plaintiff's application for injunction dismissed; stay of proceedings discharged; each party to bear its own costs.
Judges
DAS Majanja
Legal Topics
Injunctive Relief, Interlocutory Orders, Locus Standi, Sale of Mortgaged Property, Audi Alteram Partem, Stay of Proceedings
Source Language
English
Land and Property Civil Procedure Commercial and Corporate Injunctive Relief Interlocutory Orders Locus Standi Sale of Mortgaged Property Audi Alteram Partem +1 more

Case Brief

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Parties

Juliet Kirsten Pernile Duckworth

Plaintiff

Michael John Stanhope Duckworth

Defendant

Geohut Limited

Defendant

I&M Bank Limited

Defendant

Procedural Posture

Commercial Civil Case / Ruling on Interlocutory Injunction and Stay Application

Legal Issues

  1. 1 Whether the court should grant an injunction restraining the defendants from interfering with the plaintiff's possession of the suit property.
  2. 2 Whether the sale of the suit property by the bank was lawful given the lapse of the interlocutory injunction and the existence of a stay of proceedings.
  3. 3 Whether the purchaser of the suit property should have been joined as a party before adverse orders could be made.

Ratio Decidendi

The court held that it could not grant the injunction sought by the plaintiff because the purchaser of the suit property, who acquired it at a public auction, was not joined as a party to the proceedings. Granting an injunction in the absence of the purchaser would violate the rule of natural justice (audi alteram partem). The court further found that, although the bank's actions in selling the property while a stay of proceedings was in force were questionable, the lapse of the interlocutory injunction by operation of law under Order 40 Rule 6 meant there was no subsisting injunction at the time of sale. However, since the substratum of the bank's appeal was lost by the sale, the court...

Court Disposition

Plaintiff's application for injunction dismissed; stay of proceedings discharged; each party to bear its own costs.

Orders

  • The stay of proceedings issued on 19th November 2019 is discharged.
  • The application for injunction in respect of the suit property is declined.