[2017] KEHC 6918 (KLR)
The court found that the plaintiff had established a prima facie case for the grant of a temporary injunction. The property in question was used to secure a loan for the 1st defendant, and the plaintiff alleged that payments were up to date except for a stated outstanding balance. The 2nd defendant issued a...
Source-derived case information.
- Citation
- [2017] KEHC 6918 (KLR)
- Parties
- Plaintiff: Gervasio Kalonzo; Defendant: Boniface Mwenda; Defendant: Family Bank
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 192 of 2016
- Procedural Posture
- Injunction Application / Ruling on Interlocutory Injunction
- Outcome
- Temporary injunction granted for five months.
- Judges
- LN Mbugua
- Legal Topics
- Injunctive Relief, Statutory Power of Sale, Charge and Mortgage, Default and Repayment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gervasio Kalonzo
Plaintiff
Boniface Mwenda
Defendant
Family Bank
Defendant
Procedural Posture
Injunction Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the 2nd defendant from selling the charged property pending determination of the suit.
- 2 Whether the 2nd defendant's statutory power of sale has arisen and been properly exercised.
- 3 Whether the plaintiff will suffer irreparable harm if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case for the grant of a temporary injunction. The property in question was used to secure a loan for the 1st defendant, and the plaintiff alleged that payments were up to date except for a stated outstanding balance. The 2nd defendant issued a statutory demand notice and threatened to sell the property. The defendants did not oppose the application or file any pleadings. Given the risk of the plaintiff being rendered homeless and the absence of opposition, the court exercised its discretion to grant a temporary injunction restraining the 2nd defendant from selling the property for a period of five months, pending further...
Court Disposition
Temporary injunction granted for five months.
Orders
- Temporary injunction restraining the 2nd defendant from attaching or selling the plaintiff's property NANYUKI/MARURA BLOCK 1/207 (ICHUGA) for five months.
- Applicant to move the court to ensure pleadings close and pre-trial directions are taken.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
E& L CASE NO 192 OF 2016
GERVASIO KALONZO....................................PLAINTIFF
VERSUS
BONIFACE MWENDA ….....................1ST DEFENDANT
FAMILY BANK.......................................2ND DEFENDANT
R U L I N G
1. This Notice of Motion dated 27th September, 2016 seeks the following orders:-
(1)THAT this Honourable Court be pleased to certify this application is urgent and the same be heard ex-parte in the first instance.
(2) THAT this Honourable Court be pleased to issue temporary orders of injunction restraining the 2nd Defendant either by itself, employees, agents and/or any other person working under its instructions from attaching and/or selling by a public auction the Plaintiff properties known as plot number NANYUKI MARURA BLOCK 1/207 (ICHUGA) pending hearing and determination of this application inter-partes and/or until further orders of the Court.
(3) THAT this Honourable Court be pleased to issue temporary orders of injunction restraining the 2nd defendant either by itself, employees, agents and/or any other person working under it's instruction from attracting and/or selling by a public auction the Plaintiff properties known as plot number NANYUKI MARURA BLOCK 1 /207 (ICHUGA)pending hearing and determination of the suit.
(4) Cost of this application be provided for.
2. The grounds in support of the application are:-
(1) Sometimes on 10/09/2015 the Plaintiff surrendered to the 2nd defendant title deed number NANYUKI MARURA BLOCK 1/207 (ICHUGA)to secure money advanced to the 1st defendant.
(2) Immediately upon the surrender of the said title deed the 1st defendant had been extended a financial accommodation to the tune of Kshs. 2,000,000 by the 2nd defendant which inter-alia deals with leading loans in Kenya and that the aforementioned financial accommodation was to be settled by monthly installments.
(3) That the Plaintiff further avers that the 1st defendant has been paying all the monthly installments when they become due and current outstanding balance remains at Kshs. 394,863. 71.
(4) On / or about 22/08/2016 the 2nd defendant issued a statutory demand notice in respect of legal charge over suit land in default of paying of the above balance by the 1st defendant.
(5) THAT the 2nd defendant action of threats against me is wrongful and the same should not be allowed.
(6) The Defendants' actions are illegal and inimical to good order in the society and/ or conduct of business relationship unless restrained the plaintiff shall be rendered destitute and homeless.
3. Applicant has also filed a Supporting Affidavit where he has deponed has follows:-
(1) THAT I am Plaintiff herein therefore competent to swear this Affidavit.
(2) THAT Sometimes on 10/09/2015 I surrendered to the 2nd Defendant title deed number NANYUKI MARURA BLOCK 1/207 (ICHUNGA) to secure money advanced to the 1st defendant branch office Nkubu.
(3) THAT immediately upon the surrender of the said title deed the 1st defendant had been extended a financial accommodation the the tune of Kshs. 2,000,000 by the 2nd defendant which inter-alia deals with leading loans in Kenya and that the aforementioned financial accommodation was to be settled by monthly installments.
(4) THAT the 1st defendant has been paying all the monthly installment when they become due and current outstanding balance remains at Kshs. 394,863. 71.
(5) THAT on/or about 22/08/2016 the 2nd defendant issued a statutory demand notice in respect of legal charge over suit land in default of paying of the above balance by the 1st defendant.
(6) THAT the 2nd defendant actions of threats against me is wrongful and the same should not be allowed.
(7) THAT the defendants' actions are illegal and inimical to good order in the society and/or conduct of business relationship unless restrained the Plaintiff shall be rendered destitute and homeless.
(8) THAT since I have paying all monthly installments to date and its imperative the defendant be restrained by an order of the Court.
(9) THAT what is deponed herein above is true to the best of my knowledge, information and belief.
4. It appears that defendants have not filed any papers in respect of the Motion of 12:10:16 neither have defendants filed any pleadings so far.
The Application of 27:09:16 is hence unopposed. I however note that the application was filed under a Certificate of Urgency which means that applicant wanted the matter to be handled speedily. After obtaining nterim Orders on 23: 11: 2016 applicant was not vigilant to ensure that the Respondent had been served by 05. 12. 16. As such, the Interim Injunctive Orders of 23”11: 16 were vacated on 05:12:16.
With this history, the Court proceeds to grant Orders as follows:-
(1) This Court hereby issues temporary Orders of Injunction restraining the 2nd defendant either by itself, employees, agents and /or any other person working under its instructions from attaching and or selling by Public Auction THE Plaintiffs properties NANYUKI/MARURA BLOCK 1 /207 (ICHUGA) for a period of 5 (five) months.
(2) Applicant is to move the Court to ensure that pleadings close, and that pre- trial directions are take.
DELIVERED IN OPEN COURT AT MERU THIS 2ND DAY OF MARCH, 2017 IN THE PRESENCE OF:-
CA: Kananu
Mutunga h/b Mugambi Kiogora for Plaintiff
Defendants absent
L.N. MBUGUA
JUDGE