[2017] KEHC 10005 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CIVIL SUIT NO 386 OF 2014

GITIMU JAMES GATHU..…………...................…1ST PLAINTIFF

CATHERINE WANGECHI GITIMU…....................2ND PLAINTIFF

EXPRESS PIONEER SUPERMARKETS LTD....3RD PLAINTIFF

VERSUS

BUSINESS PARTNERS INTERNATIONAL

KENYA LTD…............................................................DEFENDANT

RULING

[1]The Notice of Motion dated 18 October 2016 was filed herein by the Plaintiffs/Applicants under Section 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Order 40 Rules 1, 2, 3, and 5 of the Civil Procedure Rules, Sections 90, 91(2), 96(2), (3)(c) and (f), 97(2),103(1)(b), 104(2)(a) and (b),105, 106(1)(b), (2) of the Land Act, No. 6 of 2012 and the inherent jurisdiction of the Court, for the following orders:

[a] spent

[b] Spent

[c] That pending the hearing and determination of this suit, an order of injunction be issued restraining the Defendant/Respondent whether by himself, employees, servants and/or agents or any person whatsoever acting on its behalf and/or its mandate and/or instructions from alienating, advertising for sale, offering for sale, selling, taking possession of, leasing, transferring, charging or otherwise in any manner whatsoever interfering with Land Reference Number RUIRU/KIU BLOCK 3/1185.

[d] That the Respondent be compelled to comply with and re- issue notices as per the directions and orders of 9 September 2016;

[e] That the Defendant/Respondent be ordered to pay the costs of the application.

[2] The grounds upon which the application is premised are that the 1st and 2nd Plaintiffs are the registered owners of all that parcel of land known as RUIRU/KIU BLOCK 3/1185 in Kahawa Sukari Estate, where they have established a matrimonial home (the Suit Property); and that by a Court Ruling dated 9 September 2016, the Defendant was directed to re-issue appropriate notices as required by the Land Act, 2012 before proceeding with the sale of the Suit Property, but had failed to do so. Instead, the Defendant had instructed a firm of Auctioneers, Garam Investments, to dispose of the property by way of public auction in contravention of the Court Order, and a notice of sale had been published in one of the daily newspaper, the Daily Nation of MondayOctober 10, 2016. It was thus the contention of the Plaintiffs that they will be extremely prejudiced and exposed to irreparable damage as they had not been given sufficient time to source for alternative accommodation; hence the application. These grounds were explicated in the Supporting Affidavit annexed to the application, sworn by Mr. Gitimu James Gathu, the 1st Plaintiff herein.

[3] On behalf of the Defendant, a Replying Affidavit was filed herein on 4 November 2016, sworn by the Country Manager of the Defendant, Ms. Sally Gitonga, on 28 October 2016. The Defendant's case is that that it had fully complied with the Ruling of 23 February 2015 as had been directed by the Court in the subsequent Ruling of 9 September 2016by serving the requisite notices on the Plaintiffs by way of registered post. Certificates of Posting, copies of the notices as well as pertinent documents were exhibited as annexures to the Replying Affidavit to support the Defendant's contention that the instant application is an abuse of the court process. The Plaintiff's however filed a Further Affidavit on 31 October 2016, disputing service of the notices with the support of documentation from the Postal Corporation of Kenya.

[4] The application was disposed of by way of written submissions, which were briefly highlighted on 14 February 2017. The Plaintiffs written submissions were filed on 9 February 2017 and the arguments advanced thereby are two-fold: Firstly that the Defendant instructed Garam Auctioneers to sell the Suit Property without ensuring that the statutory notices provided for in the Land Act and the Auctioneers Rules had been served as ordered by the Court.Secondly, it was the contention of the Plaintiffs that the notices that the Defendant now purports to have served were in fact returned to sender, and were therefore never received by them. Counsel relied on the Rulings of the Court dated 23 February 2015 and 9 September 2016 as well as the cases of Jimmy WafulaSimiyu vs. Fidelity Commercial Bank [2012] eKLR, Trust Bank Ltd vs. Eros Chemists Ltd [2000] 2 EA 550andPalmy Company Limited vs. Consolidated Bank of Kenya [2014] eKLR on the primacy of service of statutory notices before realization of security by way of sale. Thus, it was posited that the Plaintiffs have satisfied the conditions for the grant of an interlocutory injunction as set out in the case of Giella vs. Cassman Brown & Co. Limited [1973] EA 358.

[5] In its written submissions, which were filed on 13 February 2017, theDefendant argued that, it did comply with the orders of the Court dated 23 February 2015, by re-issuing notices as directed by the Court; and in proof thereof, the Court's attention was drawn the annexures to the Replying Affidavit, particularly Annexure SG5, Annexure SG15a and SG15bto the 2nd affidavit filed on2 March 2016. Counsel relied on the case of Angwenyi Samuel Aunga & 2 Others vs. I&M Bank [2015] eKLR to support the argument that it was sufficient that the notices were sent to the Plaintiffs last known address. Counsel also relied on the case of Jimmy WafulaSimiyu vs. Fidelity Commercial Bank Ltd(supra), but for a different reason, namely to demonstrate that, in the absence of proof that the Plaintiffs could not access their mail box, the confirmation from Postal Corporation of Kenya is of little assistance to the Plaintiffs; and that a mischievous box holder could selectively leave mail that he did not want to pick in the hope that it would be returned to sender. On the basis of the foregoing, the Defendant urged for the dismissal of the Plaintiffs' application dated 18 October 2016 and that they are merely intent on frustrating the Defendant, as Chargee, from exercising its statutory power of sale.

[6] The facts in support of the application are largely indubitable; namely, that the Plaintiffs and the Respondent entered into a loan agreement whereby the Defendant advanced the 3rd Plaintiff a sum of Kshs. 12,000,000/= for which the Suit Property, owned by the 1st and 2nd Plaintiffs, was offered as security. The loan was to be repaid in monthly instalments of Kshs. 332,249. 94 till full payment. There is no dispute that due to financial difficulties, the 3rd Plaintiff fell into arrears, whereupon the Defendant caused the requisite statutory notices to issue to the Plaintiffs, before instructing Garam Auctioneers to sell the Suit Property. To forestall the impending sale, the Plaintiffs filed this suit and the application dated 4 September 2014, seeking for, inter alia, an order of temporary injunction to restrain the Defendant and Garam Auctioneers from selling the Suit Property.

[7] It is on record that the application was heard and determined on 23 February 2015. The finding was thus:

"...the upshot of this court's ruling was that the Plaintiff's Notice of Motion application dated 4th September 2014 was not merited and the same is dismissed with costs to the Defendant. For the avoidance of doubt, the Defendant is at liberty to exercise its Statutory Power of Sale provided it strictly complies with the provisions of the law..."

[8] Another attempt was made by the Defendant to realize the security, and again the Plaintiff's were resolute that the move was in disregard of the Court Ruling of 23 February 2015. Accordingly, the Plaintiffs filed the second set of applications for temporary injunction, dated 2 February 2016 and 5 May 2016; but which the Court found to be res judicata. Those two applications were dismissed on 9 September 2016 with costs; but the Court directed the Plaintiffs to ensure compliance with the Ruling of 23 February 2015 in the following terms:

"...it is hereby reiterated for the avoidance of doubt that the Respondent is at liberty to proceed with the exercise of its statutory power of sale, upon re-issuance of appropriate notices as set out in the Land Act, 2012 and as directed by the Court in the Ruling of 23rd February 2015. "

[9]The Plaintiffs have approached the Court for the 4th time with a similar application for similar orders, and the question is whether the application is tenable, granted that the two previous applications were ruled to be res judicata. In this regard, I find instructive the decision of the Court of Appeal in Uhuru Highway Development Ltd vs. Central Bank of Kenya & 2 Others [1996] eKLR that:

"...once an application for injunction within a suit has been heard and determined under the principles as laid down in Giella vs. Cassman-Brown, a similar application cannot be brought unless there are new facts, not brought before court earlier after exercise of due diligence, which merit a re- hearing and possible departure from the previous ruling. Such cases, of course, must be very few and far in between..."

[10] Thus, the question to pose is whether, in this instant application, there are new matters that have been raised by the Plaintiffs, that were not within the purview of the previous applications. From a careful perusal of the material presented before me in respect of the instant application, there can be no doubt that the parties' respective circumstances are still the same. The debt remains unpaid and there can be no doubt in the circumstances that the Defendant would be entitled to realize the security in terms with the previous decisions of the Court. Accordingly, I would still hold, and hereby do, that a temporary injunction, as prayed for in Prayer (3) of the application would not lie in the circumstances; a point well articulated by Kwach JA in Mrao vs. First American Bank of Kenya Ltd &2 Others [2003] eKLRthat:

"...it is the duty of any person entering into a commercial transaction particularly one in which a large amount of money is involved to obtain the best possible legal advice so that he can better understand his obligations under the documents to which he appends his signature or seal. If courts are going to allow debtors to avoid paying their just debts by taking some of the defences I have seen in recent times for instance challenging contractual interest rate, banks will be crippled if not driven out of business altogether and no serious investors will bring their capital into a country whose courts are a haven for defaulters..."

[11] Nevertheless, the applicant has demonstrated that subsequent to the Court's Ruling of 9 September 2016, the Defendant instructed Garam Auctioneersto sell the Suit Property. There is a letter dated 7 October 2016 annexed to the Supporting Affidavit by which Garam Auctioneers purported to give 14 days' notice of its intention to sell the property from the date of advertisement. The advertisement itself was done on 10 October 2016 as per the copy of the Daily Nation annexed to the Supporting Affidavit. There is otherwise no indication or evidence of any statutory notice in terms of Sections 90 and 96of the Land Act or Rule 15 of the Auctioneers Rules that were issued by the Defendant subsequent to the Court Rulings of 9 September 2016.

[12] I note that the Defendant placed reliance on certain notices that were issued in 2015, long before the Court Ruling of 9 September 2016 and submitted that they were issued in compliance with the Ruling of 23 February 2015. In my careful consideration however, having filed the Notice of Motion dated 2 February 2016 those notices were overtaken by events and were, in effect,nullified by the Ruling of 9 September 2016; by which clear directions were given for re-issuance of notices. I therefore have no hesitation in holding that those previous notices, whether served or not, were invalid from the standpoint of the Ruling of 9 September 2016, and reiterate that the Defendant can only proceed to exercise its statutory power of sale upon serving fresh notices to be issued hereafter. In the premises, Prayer (4) is meritorious and is allowed; and the result is that, except to the extent aforestated, the Plaintiff's application dated 18 October 2016is otherwise dismissed with an order that the costs thereof be in the cause.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF SEPTEMBER 2017

OLGA SEWE

JUDGE