[1999] KEHC 16 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL SUIT 536 OF 1997

1. GEOFFREY MAN ASANYO...................................................................... 1ST PLAINTIFF

2. JOSEPH MONYOGORO ONCHONGA......................................................... 2ND PLAINTIFF

VERSUS

NATIONAL BANK OF KENYA LTD.................................................................... .DEFENDANT

RULING

I gave a Ruling in this matter on 13th April, 1999. The plaintiffs/applicantswere not satisfied with my orders and have given notice of Appeal to appeal tothe Court of Appeal against the whole of my said decision.

They have filed an application for stay of execution of the orders pendingthe hearing and final determination, of the appeal.The application is brought under order XLI r.4. of the Civil ProcedureRules. It is supported by an affidavit and annexure.

I have perused the same.

The application is steronously opposed. Grounds of opposition have beenfiled and a replying affidavit.

The position here is that the applicants/plaintiffs wish to have thedefendant restrained from excercising its right and power of sale pending determination of the appeal. I take it that once a party has a right of appeal and wishes to appeal and sets its right of appeal,on motion then the proceedings between the parties are not concluded. Unless there are good reasons or conditionsset out under order XLI r.(4) are not satisfied orders of stay cannot be refused.

The respondent is well secured as it is holding all the securities. Itis a matter of setting the date of sale if tne applicants are not successful onappeal•

For these reasons I feel that the application is merited. The applicationdated 14th June, 1999 is allowed. Costs will be in the intended appeal.Dated and delivered at Nakuru this 22nd day of September, 1999.

IN THE HIGH COURT OF KENYA AT NAKURUCIVIL SUIT NO.536 OF 1997

1. GEOFFREY MAKANA ASANYO.............................. Ist PLAINTIFF

2. JOSEPH MONYONCHO ONCHONGA.................. 2nd PLAINTIFF

VERSUS

NATIONAL BANK OF KENYA LTD............................... DEFENDANT

1/12/97

Mr. Githiru for Mr. Gekonga for the. plaintiffs/applicants

W. K. TUIYOT

DEPUTY REGISTRAR

GITHIRU: I apply for the certificate of urgency so that the matter can beplaced before the Judge for hearing.

W. K. TUIYOT

DEPUTY REGISTRAR

ORDER: I hereby certify that the matter is urgent and that it be placedbefore the Judge for hearing.

T. K. YUIYOT

DEPUTY REGISTRAR

1/12/97

Before D.M. Rimita, J.Cheche for the applicantN/A for the respondentCC Ole Kisonko

MR. CHECHE: We are instructed in prayer 2 of the application. The sale ison 2/12/97.

D. M. RIMITA

JUDGE

COURT: Orders in terms of prayer 2 of the application dated 1st December,1997. Application be served for hearing on 16/12/97.

D. M. RIMITA

JUDGE

16/12/97

Before D.M Rimita, J.Gekonga for the applicantMwangi for the respondentCCOle Kisonko

COURT: By consent the application is adjourned to 26/1/98 at 9. 00 a.m.Interim orders are extended.

D. M. RIMITA

JUDGE

19/12/97

Memorandum of appearance filed in by Hamilton Harrison & Mathews .advocates for the defendant.

W. K. TUIYOT

DEPUTY REGISTRAR

8/1/98

Statement of defence filed in by Hamilton Harrison & Mathews advocate forthe defendant.

W. K. TUIYOTDEPUTY REGISTRAR

26/1/98

Before D.M. Rimita, J.

Nyangi for the respondent

Gekonga for the applicant

CC Ole Kisonko

COURT: By consent application dated 1st December 1998 is adjourned to 18/3/98. Interim orders are extended.

D. M. RIMITAJUDGE18/3/98

Before D.M. Rimita JKamau for the plaintiffNyangi for the defendantCC Ole KisonkoCOURT: Application to proceed on 19/5/98. Interim orders are extended.

D. M. RIMITAJUDGE19/5/98

Before D.M. Rimita, J.Gekonga for the applicantMahida for respondentCC Ole Kisonko

COURT: By consent the matter is adjourned to 10/6/98 to mention. Interimorders are extended.

D. M. RIMITAJUDGE

10/6/98

Before D.M. Rimita, J.

Gekonga for the applicant

Mahida for the respondent

CCOle Kisonko

COURT: Chief Justice's letter to be made available to court. Further mention 6/7/98.

D.M. RIMITA

JUDGE6/7/98

Before D.M. Rimita, J.Gekonga for the applicantN/A for the respondentCC Kisonko

COURT: I still wish to see the letter from Hon. The Chief Justice to enableme consider the matter further. Mention on 18/9/98. Interim orders areextended.

D. .M. RIMITA

JUDGE

19/10/98

Mitei, J.

Gitonga for respondentGekonga for plaintiffKisonko CC

MR. GEKONGA: In applying for an adjournment. Mr. Ochieng Oduol isleading me in this case. I cannot proceed in his absence. My client has aright to choose counsel of his choice. Mr. Oduol wrote to court 15/10/98 indicating that he was not available today. He copied it to defendant'slawyers.

J. K. MITEIJUDGEMR. GITONGA: I oppose the application. This matter was convened bycertificate of urgency in 1/12/97. Initially the applicant had indicated he wasseeking services of Oraro & Rachier. It has been the policy of theapplication to delay the matter for as long as possible to obstruct thedefendant from realizing the charged property. On 6/7/98 this matter waslisted for hearing. The respondent was absent but the applicant took ahearing date. No good reasons were given for that. This is an urgent matter.It has stopped the bank from selling.the charged property. The issue ofrepresentation should have been encouraged a year ago. The amountsinvolved is in excess of 100 million. It is in the interest of both parties thatthis matter is disposed as soon as possible. I and Mr. Nyamu indicated toMr. Oduol that we would not consent to any further adjournment. Mr.Gekonga has been on record all along. Adjournment should be deniedbecause the plaintiff engaged leading counsel only on 15/10/98. Mr. Oduolshould have indicated a nearer date and not a far date.

J.K.MITEIJUDGEMR. GEKONGA: This matter was listed for mention today and not hearing.I was not the one who requested the court to have the matter mentionedtoday. It has never been the wish of the applicant to have the matterdelayed. The respondent have all along applied to have the mattertransferred to Nairobi. They did this through the firm of Jones & Jones on6/7/98 the date was taken in the court motion. There is a court order for a Nairobi Suit which Hon. Justice Rimita. The date was taken so thatdefendant could produce it in court. Even thought the amount is colossal, itdoes not mean that the applicant owes that amount.

J. K MITEIJUDGERULING

When the matter came up for hearing Mr. Gekonga applied for anadjournment on the ground that the leading counsel in the matter, Mr.Ochieng Oduol was not available. He contended that he could not proceedwithout his leading counsel. According to him this fact was communicatedto court and the lawyers for the defendants vide Mr. Ochieng Oduols letterdated 15/10/98. Mr. Gitonga for the defendant/respondent opposed theapplication. He submitted that the plaintiff has persistently ensued that thehearing of the application is delayed. He submitted that the Bank is beingdenied its right to realize the charged property. On the issue ofrepresentation Mr. Gitonga submitted that the same should have been sortedout earlier. The plaintiff should not have waited till October 1998 to appointa leading counsel, he stressed.

I have perused the earlier proceedings in this case. On 10/6/98 Hon.Justice rimita ordered that the matter be mentioned before him on 6/7/98 andthat a letter from the Hon. The Chief Justice be availed to it. On 6/7/98 thelearned judge indicated that he wished to see the letter from the Hon. TheChief Justice to enable him consider the matter further. He ordered a furthermention on 18/9/98. When the matter came up before Hon. Justice Mulwaon 18/9/98 it is not clear whether he listed the matter for 19/10/98 for. mention or hearing.

What is apparent is that Hon. Justice Rimita could not proceedwithout the letter from the Hon the Chief Justice. He appears more seized ofthe matter and would be in a better position to deal with the application afterthe letter referred to in his orders is availed. I will therefore grant theapplication and order that this matter be mentioned before Hon. JusticeRimita on 4/1. 1/98. Costs in cause. Interim orders extended.

J.K.MITEI

JUDGE

4/11/98

Before D.M. Rimita, J.

Gekonga for the applicant

Wamasa for the respondent

CC Kisonko

COURT: By consent the application is fixed for hearing on 11/12/98.

Interim orders are extended.

D. M. RIMITA

JUDGE

11/12/98

Before D.M. Rimita, J.Gekonga for the applicantGi tonga for the respondentCC Kisonko

MR. GEKONGA: Mr. Ochieng Oduol is leading me. When tookinstruction from the applicant, we made an application for amendment. Itwas served upon the respondent. The application was served on 8th December, 1998. I understand the application is not being opposed.

Paragraphs 8, 9 and 10 of the application have raised important issues. Theapplication dated 8th December 1998 be heard first.

D. M. RIMITAJUDGEMR. GITQNGA: We were served with the application for amendment ofthe plaint. Mr. Oduol is not on record. He is being brought as a delayingtactic. I am prepared to proceed this afternoon.

D. M. RIMITAJUDGEMR. GEKONGA: Mr. Oduol is leading me in the case. After the plaint isamended we may need to amend our plaint.

D. M. RIMITA

JUDGE

RULING:

I agree with Mr. Gitonga that this matter has taken too long to bedisposed of. But I note from the record that the respondent is partly toblame for the delay. The applicant is also to blame to-day for bringing upthis application for amendment at the eleventh hour. The application shouldhave been brought when my brother Justice Mitei dealt with the matter.

But it would appear that the application for amendment of the plaint isnot being opposed. Mr. Gitonga concern which I share with him is thatfurther delay in disposing of the application. However it is important thatthe matter is dealt with once and for all.

I will give the applicant/plaintiff leave to amend the plaint. Theamended plaint be filed within the next 7 days from to-days date. Thedefendant may file amended defence within 14 days upon service of theamended plaint if it so desires.

I wish to make it clear that I will not entertain further adjournments inthe matter.

To-days costs will go to the defendant/respondent.

D. M. RIMITA

JUDGE

11/12/98

COURT: By consent the applicant may put it an amended applicationwithin the next 7 days from to-days date. Each party may put furtheraffidavits if need be. Hearing on 1/2/99. Interim orders are extended.

D. M. RIMITA

JUDGE

14/1/99

Amended defense and further replying affidavits filed by Harrison,Hamilton & Mathews advocates.

DEPUTY REGISTRAR

NAKURU

1/2/99

Before D.M. Rimita, J.Wagara with Gekong for plaintiffGitonga for the clefendant/respondentCCKisonko

MR. WAGARA: The application coming for hearing to-day is the amendedchamber summons. The application is basically an application forinjunction. The grounds upon which the application is brought are set inapplication. It is also supported by the affidavit of Geoffrey Asanyo.

It is supported by a further affidavit, sworn by Mr. Geoffrey Asanyo.We are craving for an injunction. Sometime on 2nd December 1997, the defendant intended to sell various properties belonging to the applicant. (seeapplication).

Interim orders were made and have been place since then. The sum ofmoney complained of was borrowed by Kwanza Motors Ltd. The applicantswere guarantors. During the life of the debt, the applicants were neverposted and have not been posted of what Kwanza Motors Ltd paid or thebalance to be redeemed by the sale. The applicants are graping in the dark.

They are in occupation of the properties. They have not been givenchance to redeem. Where a charge is created the borrower or the guarantorhas a right to redeem. We are completely left with a scenario we are unable toaddress. If the property is sold there will be no opportunity to redeem. Weadmit that Kwanza owes. What is owed needs to be communicated so thatwe know how to address it. Kwanza has been under receivership. Areceiver was put in place. This confuses the record because there is a newmananger.

The respondent agrees that it has not rendered the account. This hasnot been done. We are craving for an opportunity to pay. The principles onwhich injunction should be granted are well sort out. The properties arefamily properties. The applicants will suffer irreparable loss. The familywill be rendered homeless. There will be a deep trauma inflicted on thefamily.

The suit stands a high chance of success. On that score the suit standsa high chance of success. See the prayers in the application and pleadings.

D. M. RIMITAJUDGEMR. TIGONGA: I oppose the application. I will go to the arguements ofmy learned friend. The applicant is basing his prayer on morals and not law. Emotions have been raised without supporting the same in law. The powerof sale has been raised. This property was given as security. They did notthink of the consequences. The securities became commodities of sale. Thepersonate appeal should be disregarded. A demand was made to each of theapplicants. The right of redemption fell on the day of the demand. Therecannot be sale until 6 months after date of demand.

See exhibit G.M.I. Affidavit of George Mutua. The guarantors haveno access to the account. They should have gone to the bank to check whythere were so much unpaid debt. Statements are with Kwanza Motors. Seemy affidavit sworn on 12th January, 1999. The plaintiffs did not request forthe statements.

See my ground of objection.1. From paragraph 1 to paragraph 13 of the amended plaint does not reveal any breach.

The only ground is that accounts were not supplied. Account are for theprincipal debtor. They say that they were not given an opportunity toredeem. That is an equitable right. When there is default and demand thedebtor or guarantor has the right of redemption. Demands were made on10 may 1996. From then onwards no payment has been made. They didnot ask for accounts. On 1st December 1997 they rushed to court ex-partand got an injunction. The sale was postponed from that date to-date the ex-parte order is in place. No payment of even a single cent. No request forstatements. They are not entitled to say that they have not been givenchance to redeem. That would be observed. No efforts shown to redeem.See case of Giella v/s Brown (1973) E.A. 358. No particular point of lawhas been argued. The application should fail totally. Majority of theseproperties were commercial properties. If the case succeeds damages would suffice. Injunction does not lie. See High Court case No. 434/96. The casewas decided conclusively. The case touched the points before the court.The application is res-judicata. The substance of the suit and the applicationare the same. They did not disclose this to the court. They are out to vex therespondent.

I have filed a list of the authorities. I rely on the affidavit of GorgeMutua. He has set out the notices. On a balance of convenience theapplicants have failed to establish a case for injunction. The respondentneeds sympathy more than the applicant.

D. M. RIMITAJUDGEThe parties in other suit are different. It would not be res judicata asfar as the second defendant is concerned. The sales to be stopped aredifferent. There is nothing difficult in giving the accounts. Why sell. Oneof the notices is not signed. It is not addressed to Kwanza or secondplaintiff. The 2nd defendant is entitled to the statutory notice. The issue ofaccounts is important to the parties.

D. M. RIMITAJUDGECOURT: ruling on 8/3/99

D. M. RIMITAJUDGE8/3/99

Before DM. M. Rimita, J.N/A for the applicantOrego for Gitonga for respondentCC Kisonko

COURT: Ruling on 13/4/99

D. M. RIMITAJUDGE

COURT: Read in absence of the parties and their advocated.

D. M. RIMITAJUDGE17/6/99

Before D.M. Rimita, J.Achola for the applicantCC Kisonko

MR. ACHOLA: We pray for stay as we are applying against the court'sruling.

D. M. RIMITA

JUDGE

COURT: Say ordered pending hearing inter partes on 22/7/99 at 9. 00 a.m.

D. M. RIMITA

JUDGE

22/7/99

Before D. M. Rimita, J.Konosi for the applicantGitonga for the respondentCC Kisonko

MR. KONOSI: Notice of Motion dated 14th June 1999. The application isunder order 41 of the civil procedure rules. We are seeking stay ofexecution of the orders of the court. We have set out ground in the body.The application is also supplied by an affidavit sworn by me. When the ruling was delivered the parties and advocates were absent. I was instructedto file application. There is an application in the court of appeal. Thesecond application stands to suffer loss if the orders are executed. He shouldhave been allowed to know the amount and redeem. We pray for stay of theorders. We pray for costs of the applicant.

D. M. RIMITA

JUDGE

MR. GITONGA: I do oppose the appliction. I have filed a set of grounds ofopposition. I entirely rely on the grounds and the affidavit. The firstplaintiff does not intend to appeal. His case was res-judicata. As far as thefirst plaintiff is concerned it has not been said that he intends to appeal. Hisappeal should be in 434/98. The second defendant should have been servedwith 3 months notice. He was given 3 months notice. He has had time. Thepurpose of the application is to delay collection of a debt that stands atShs.175 million.

No security has been offered. No settlement of debts as yet. Theapplication has been brought late. The ruling was for 13/4/99. The mostprobable assumption was that they learnt of the ruling changed advocatesand made the application. NO orders are capable of execution. Thedefendant was not ordered to realise the property. No substantial loss willbe suffered. Each is required to Offer security. See the authorities.Discharge the order. Appliction be dismissed with costs.

D.M. RIMITA JUDGE MR. KONOSI: We are dealing with an application for stay of execution.The applicants are prepared to deposit security. D. M. RIMITA JUDGE COURT: Ruling on 22/9/99 D. M. RIMITA JUDGE 22/7/99