[2001] KEHC 627 (KLR)
The court found that the plaintiffs' complaints—namely, the unilateral increase of monthly instalments and the potential for irreparable loss if the properties were sold—did not constitute sufficient grounds for the grant of an interlocutory injunction. The court applied the established principles for granting...
Source-derived case information.
- Citation
- [2001] KEHC 627 (KLR)
- Parties
- Plaintiff: Festus G. Ndungu; Plaintiff: Orieng Afrique Limited; Defendant: National Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1571 of 2001
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- application dismissed with costs
- Judges
- T Mbaluto
- Legal Topics
- Injunctive Relief, Loan Enforcement, Mortgage Disputes, Unilateral Variation of Terms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Festus G. Ndungu
Plaintiff
Orieng Afrique Limited
Plaintiff
National Bank of Kenya Limited
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiffs have established sufficient grounds for the grant of an interlocutory injunction to restrain the defendant from selling the charged properties.
- 2 Whether the unilateral increase of monthly instalments by the defendant without notice constitutes a basis for injunctive relief.
- 3 Whether the plaintiffs will suffer irreparable loss if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiffs' complaints—namely, the unilateral increase of monthly instalments and the potential for irreparable loss if the properties were sold—did not constitute sufficient grounds for the grant of an interlocutory injunction. The court applied the established principles for granting injunctions, noting that the plaintiffs failed to demonstrate a prima facie case with a probability of success or irreparable harm that could not be compensated by damages. The application was therefore dismissed with costs to the defendant.
Court Disposition
application dismissed with costs
Orders
- The application for injunction is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 1571 OF 2001
FESTUS G. NDUNGU ………………………………….. 1ST PLAINTIFF ORIENG AFRIQUE LIMITED …………………………. 2ND PLAINTIFF VERSUS NATIONAL BANK OF KENYA LIMITED ……………... DEFENDANT
RULING
This is an application for an injunction to restrain the defendant from selling the plaintiffs’ property known as L.R. No. Mombasa/Block XXI/423 and 2274 (L.R. No. 784) Mweiga, Nyeri until the hearing and determination of this suit. The application is based on the following grounds:-
1. That the plaintiffs/applicants borrowed the sum of Kshs.7. 5m in 1991 and the respondent is now demanding close to Kshs.45m which to the plaintiffs is oppressive;
2. That all the while the plaintiffs fulfilled thei r part of the agreement by remitting Kshs.100,000/= per month as the agreed monthly instalment only for the defendant to hike this to Kshs.500,000/= per month without notice to the plaintiffs or consent thereof. and is supported by an affidavit sworn on 12. 10. 2001 by Festus George Ndungu. Mr. Ndungu makes only two complaints in his affidavit.
These are that the defendant has unilaterally and without notice increased the monthly instalments from Kshs.100,000/= to Shs.500,000/= making it impossible for him to clear the arrears on his account and that if the properties aforesaid are sold, he will suffer irreparable loss. In my view, these two complaints do not constitute sufficient ground for granting an injunction and I would dismiss the application with costs.
Dated at Nairobi this 27th day of November, 2001.
T. MBALUTO JUDGE