[2010] KEHC 3406 (KLR)
The court found that the plaintiff's suit was premature and disclosed no cause of action because the only threat to the plaintiff's property—a notification of sale by the auctioneer—had been issued in error and was subsequently withdrawn. The property remained charged to the 1st defendant, but there was no current...
Source-derived case information.
- Citation
- [2010] KEHC 3406 (KLR)
- Parties
- Plaintiff: Duncan Chuhi Mungai; Defendant: Kiambu Unity Finance Co-operative Union; Defendant: Gladsom Auctioneers Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 590 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Plaint
- Outcome
- suit struck out
- Judges
- FI Koome
- Legal Topics
- Striking Out Pleadings, Loan Default, Injunctive Relief, Secured Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Chuhi Mungai
Plaintiff
Kiambu Unity Finance Co-operative Union
Defendant
Gladsom Auctioneers Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaint discloses a cause of action against the defendants.
- 2 Whether the suit is premature in the absence of a real threat of sale of the plaintiff's property.
Ratio Decidendi
The court found that the plaintiff's suit was premature and disclosed no cause of action because the only threat to the plaintiff's property—a notification of sale by the auctioneer—had been issued in error and was subsequently withdrawn. The property remained charged to the 1st defendant, but there was no current or imminent threat of sale. The plaintiff did not contest the application to strike out the plaint, and the facts as presented by the 1st defendant were uncontroverted. Therefore, the court was satisfied that the suit should be struck out as it was not properly before the court and failed to meet the threshold for a cause of action.
Court Disposition
suit struck out
Orders
- The suit is hereby struck out.
- The 1st defendant shall have the costs of the application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Suit 590 of 2009
DUNCAN CHUHI MUNGAI……………………................………….……….....PLAINTIFF
VERSUS
KIAMBU UNITY FINANCE CO-OPERATIVE UNION ................................................1ST DEFENDANT
GLADSOM AUCTIONEERS LIMITED ……………….……..................……...........2ND DEFENDANT
RULING
1. Duncan Chuhi Mungai filed this suit against the defendants on 2nd July
2009. Simultaneously with the filing of the suit, a chamber summons application was filed under the provisions of order 39 rules 1, 2 and 3 of the Civil Procedures Rules seeking for interim orders of injunction. That application was subsequently withdrawn on 2nd December 2009. The first defendant filed a defence denying the allegations contained in the plaint.
2. On 14th January 2010, the 1st defendant filed a chamber summons
application under order VI rule 13(b) and (d) of the Civil procedure Rules seeking for orders that the plaint be struck out and the suit be dismissed with costs to the 1st defendant.This application is supported by the grounds that the plaintiff is truly indebted to the 1st defendant having obtained an overdraft facility in May 2005 which was secured by the plaintiff’s plaintiff property known as KIAMBU/KANUNGA/1815. The loan was to be repaid within one year in equal monthly installments. The plaintiff failed to service the loan and as at 30th June 2008, the loan outstanding and due to the 1st defendant was Ksh.968,393. 00/-.
3. The plaintiff acknowledged the indebtedness and sought indulgence to
pay the outstanding loan by monthly installments of Ksh.5000/- per month. The 1st defendant contends that they have not instructed the auctioneers to auction the plaintiff’s property. There was a notification which was issued by the auctioneer but it was done in error and it was subsequently withdrawn. The plaintiff was advised of that cancellation and despite making promises to pay the outstanding loan; the plaintiff has not done so. The plaintiff’s claim in this suit is pre mature because there is no threat for sale of his property and the suit should be struck out. This application was served upon the respondent. However he did not appear during the hearing, thus there was no opposition to this application.
4. I have considered the application as well the plaint. The matters averred by the 1st defendant are not controverted. It is evident that the suit premises are registered in the name of the plaintiff as per the certificate of search issued on 5th February 2009. The property is charged to the 1st defendant, and since the notice issued by the auctioneers was withdrawn there is no threat of sale of the suit premises. Accordingly, I am satisfied that the suit by the plaintiff is not only premature but also discloses no cause of action.
5. Accordingly the suit is hereby struck out. The 1st defendant shall have the
costs of the application.
RULING READ AND SIGNED ON 26TH MARCH 2010 AT NAIROBI.
M.K. KOOME
JUDGE