[2021] KECPT 528 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.493 OF 2019

IGNATIUS GITONGA MBAKA................................................................CLAIMANT

VERSUS

TIMES U SAVING & CREDIT

CO-OPERATIVE SOCIETY LIMITED.............................................RESPONDENT

RULING

Vide the Application dated 26. 8.2019, the Claimant has moved this Tribunal seeking for Orders inter alia:

a. That this Application be certified urgent and be heard ex-parte in the first instance;

b. That this Honourable Tribunal issue an Order of temporary injunction against the Respondent, its agents, servants or any other person claiming through them from selling, alienating or in any other way interfering with the Applicants land Parcel No. NKUENE/MITUNGUU/2437 pending interparties hearing of this Application;

c. That this Honourable Tribunal issue an order of temporary injunction against the Respondent, its agents, servants or any other person claiming through them from selling, alienating or in any other way interfering with the Applicants land Parcel No. NKUENE/MITUNGUU/2437 pending the hearing of the main suit; and

d. That costs of the Application be provided for.

The Application is supported by the grounds on its face and the Affidavit sworn by the Claimant on 26. 8.2019. The Respondent has opposed the Application by filing a Replying Affidavit sworn by Catherine Ndumba, its Credit Manager on 30. 10. 2019.

Vide the directions given on 16. 9.2020, the Application was canvassed by way of written submissions. The Respondent filed its submissions on 18. 11. 2020 while the Claimant did not do so despite clear directions by the Tribunal.

Claimant’s Contention

Vide the instant Application, the Claimant contend that he is the Registered owner of L.R.NO. NKUENE/MITUNGUU/2437. That he applied and received a loan of Kshs.800,000/= from the Respondent. That the same was repayable within a period of three (3) years. That he offered his deposit of Kshs.400,000/= and the said parcel as security for the loan. That as at the time of filing this Application, he had repaid in total sum of Kshs.700,000/= but never received a loan statement from the Respondent. That the Respondent wants to dispose of the said parcel without issuing the requisite Notices.

Respondent’s Case

Vide the Replying Affidavit sworn by Catherine Ndumba on 30. 10. 2019, the Respondent has opposed the Application on the following grounds:

That the Claimant borrowed the loan as stated in the Application and offered the said parcel as security. That the loan was disbursed on 5. 7.2016. That the he repaid the same as earlier agreed until a point when he defaulted doing so. That upon default, it reached out to him vide all means of communication but he was non responsive. That he was issued with a demand letter dated 8. 8.2018 but he never acted on it. That he was furnished with a statement of account. That the Application should therefore be dismissed with cost.

Issues for determination

We have framed the following issues for determination:

a. Whether the Claimant has established a proper basis for the grant of a temporary injunction.

b. Who should meet the costs of the Application?

Temporary injunction

We have jurisdiction to make an order regarding temporary injunctions by dint of Order 40 of the Civil Procedure Rules. Order 40 Rule 1 (a) provides thus:

“ Where in any suit it is proved by Affidavit or otherwise –

(a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongly sold in execution of a decree, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders.

Before exercising the above jurisdiction, we are guided by the Principles enunciated by the court in the case of Giella – versus- Cassman Brown [1973] EA. They include:

(a) A prima facie case with a probability of success;

(b) Irreparable damage; and

(c) Balance of Convenience.

The court in the case of Mrao Limited versus first American Bank of Kenya Limited (2003) eKLR explained what Constitute a Prima Faciecase in the following terms:

“.......A Prima Facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of the Applicant’s case upon trial. It is a case which on the material presented, to the court, a Tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation from the latter......”

Prima FacieCase

As was held in the Mirao case above for a party to be seen to have established a prima facie case with a probability of success, he must demonstrate that he has right which has been or is in the process of being trampled by the opposition party so as to call for explanation.

In the present Application, the Claimant’s borne of contention is that he has repaid the loan to that amount of Kshs.700,000/= but has not been issued with his loan statement. That he has not been issued with the requisite statutory Notice as is required by law.

What we hear the Claimant to be protesting against is the manner in which the Respondent is realizing its security. We have not heard or seen him demonstrate whether he is repaying his loan in terms agreed with the contract he entered with the Claimant. It is not enough to merely state that “I have paid a sum of Kshs.700,000/=.” What is critical is for the Claimant to demonstrate that the Respondent wants to dispose of his property in total contravention with his loan Application terms.

We have perused the loan statement annexed to the Replying Affidavit of Catherine Ndumba. We note that the Claimant owed the Respondent a sum of Kshs.281,965/= as at9. 9.2019. We have not heard him react to the said statement.

We are thus not satisfied that the Claimant has established an infringement of a right so as to call for a rebuttal from the Respondent.

Whist holding so, we have perused the annextures to the Replying Affidavit of Catherine Ndumba and cannot place sight to any document showing that the Auctioneers have followed the correct channel in the process of realizing security. We find that until this process is followed, that is, Notices being issued in terms of the provisions of Rule 12 of the Auctioneers rules, then any intended sale of the property will deemed to be illegal.

Conclusion

The upshot of the foregoing is that we do not find merit in the Claimant’s Application dated 26. 8.2019 and hereby disallow it with costs in the cause. The Respondent is however prohibited from selling property L.R.NO.NKUENE/MITUNGUU/2437 unless appropriate statutory Notices are issued.

Ruling signed, dated and delivered virtually this 28thday of January, 2021.

Hon. B. Kimemia Chairperson Signed 28. 1.2021

Mr. B. Akusala Member Signed 28. 1.2021

Mr. R. Mwambura Member Signed 28. 1.2021

Miss Simiyu for Respondent : Present

Hon. B. Kimemia Chairperson Signed 28. 1.2021