[2012] KEHC 809 (KLR)
The court found that the 2nd respondent, being a limited liability company, lacks the legal capacity to act as an auctioneer under Section 14(2) of the Auctioneers Act, which requires that only individuals or firms comprised solely of licensed auctioneers may carry on auctioneering business. The court further held...
Source-derived case information.
- Citation
- [2012] KEHC 809 (KLR)
- Parties
- Plaintiff: George Maina Kingori; Plaintiff: Brite International Ltd; Defendant: Bank of Baroda (K); Defendant: Sportlightintercepts (K) Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 867 of 2009
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- temporary injunction granted
- Judges
- CM Njagi, C.N Mutava
- Legal Topics
- Injunctions, Equity of Redemption, Auctioneer Regulation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Maina Kingori
Plaintiff
Brite International Ltd
Plaintiff
Bank of Baroda (K)
Defendant
Sportlightintercepts (K) Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicants are entitled to a temporary injunction restraining the defendants from disposing of or alienating the suit property pending determination of the suit.
- 2 Whether the 2nd respondent, being a limited liability company, can lawfully act as an auctioneer under Kenyan law.
Ratio Decidendi
The court found that the 2nd respondent, being a limited liability company, lacks the legal capacity to act as an auctioneer under Section 14(2) of the Auctioneers Act, which requires that only individuals or firms comprised solely of licensed auctioneers may carry on auctioneering business. The court further held that the applicants had established a prima facie case with a probability of success, particularly to pre-empt an illegality. Consequently, the court granted a temporary injunction restraining the defendants from disposing of or alienating the suit property pending the hearing and determination of the suit, subject to the applicant filing and serving an undertaking as to damages...
Court Disposition
temporary injunction granted
Orders
- A temporary injunction is granted restraining the defendants from disposing of or in any way alienating the applicant's property comprised in LR. No. 209/10530/959 pending the hearing and determination of the suit.
- The applicant shall file and serve an undertaking as to damages within 10 days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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GEORGE MAINA KINGORI……………….....…………..…….1ST PLAINTIFF
BRITE INTERNATIONAL LTD……………...….………….....2ND PLAINTIFF
VERSUS
BANK OF BARODA (K)…………..………………………..1ST DEFENDANT
SPORTLIGHTINTERCEPTS (K) LTD………………....…..2ND DEFENDANT
RULING
This is an application for a temporary injunction restraining the Defendants from disposing of or in any way alienating the Applicant’s property comprised in LR. No. 209/10530/959 pending the hearing and determination of this suit. The application is brought by a Chamber Summons dated 26th November, 2009 and taken out under Order XXX1X Rules 1, 2, 2A, 3, 5 and 9 of the (old) Civil Procedure Rules.
The application is supported by the annexed affidavit sworn by the 1st Plaintiff on 26th November, 2009 and is based on the grounds that the 2nd Applicant has settled all amounts owing to the 1st Respondent; that the Respondents herein are clogging the 1st Applicant’s equity of redemption; and that the 2nd Respondent is a limited liability company which cannot hold an auctioneer’s licence.
Section 14(2) of the Auctioneers Act is in the following words-
“A licenced auctioneer shall carry on business in his own name or in the name of a firm all of whose partners are licensed auctioneers.”
These words clearly envisage that a licensed auctioneer shall be a human person and not a body corporate. To that extent, the 2nd Respondent lacks the locus standi to transact business as an auctioneer, and any attempt to do so would be illegal.
In order to pre-empt an illegality, I find that the Applicant has made out a prima facie case with a probability of success, and I accordingly grant a temporary injunction in terms of prayer 3 of the application by Chamber Summons dated 26th November, 2009.
Costs will be in the cause.
The Applicant to file and serve an undertaking as to damages within 10 days.
L. NJAGI
JUDGE
DATEDand DELIVERED at NAIROBI this 20th day of November, 2012.
MUTAVA
JUDGE