[2016] KEHC 8552 (KLR)
The Court found that the Plaintiff had demonstrated service of a 45-day redemption notice that had lapsed and that the threat of sale of her property was real and imminent. Given the circumstances and the absence of opposition at this stage, the Court was satisfied that the Plaintiff met the threshold for the grant...
Source-derived case information.
- Citation
- [2016] KEHC 8552 (KLR)
- Parties
- Applicant: Isabella Nyambura Gitau; Respondent: Consolidated Bank of Kenya Limited; Respondent: J.M. Kariuki t/a Jo-Mwaka Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 87 of 2016
- Procedural Posture
- Civil Case / Ruling on Ex Parte Application for Temporary Injunction
- Outcome
- temporary injunction granted
- Judges
- OA Sewe
- Legal Topics
- Temporary Injunctions, Mortgage Enforcement, Redemption Notice, Auction of Property, Loan Default, Interlocutory Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isabella Nyambura Gitau
Applicant
Consolidated Bank of Kenya Limited
Respondent
J.M. Kariuki t/a Jo-Mwaka Auctioneers
Respondent
Procedural Posture
Civil Case / Ruling on Ex Parte Application for Temporary Injunction
Legal Issues
- 1 Whether the Plaintiff is entitled to a temporary injunction restraining the Defendants from selling the suit property pending determination of the application.
- 2 Whether the 1st Defendant complied with statutory notice requirements before seeking to auction the property.
Ratio Decidendi
The Court found that the Plaintiff had demonstrated service of a 45-day redemption notice that had lapsed and that the threat of sale of her property was real and imminent. Given the circumstances and the absence of opposition at this stage, the Court was satisfied that the Plaintiff met the threshold for the grant of a temporary injunction to preserve the suit property pending the hearing and determination of the substantive application. The Court exercised its discretion to grant the injunction to prevent the risk of irreparable harm to the Plaintiff, as the sale of the property would render the suit nugatory.
Court Disposition
temporary injunction granted
Orders
- A temporary injunction is granted restraining the Defendants from selling LR NO. NGONG/NGONG 51924 (Original Number 14890) pending the hearing and determination of the application dated 23rd March, 2016.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 87 OF 2016
ISABELLA NYAMBURA GITAU.………….….PLAINTIFF/APPLICANT
VERSUS
CONSOLIDATED BANK OF
KENYA LIMITED……………………..1ST DEFENDANT/RESPONDENT
J.M. KARIUKI t/a JO-MWAKA AUCTIONEERS…............2ND DEFENDANT/RESPONDENT
RULING
The Plaintiff/Applicant, Isabella Nyambura Gitau, approached the Court under a certificate of urgency, seeking orders that the Court be pleased to grant a temporary injunction restraining the Defendants/Respondents from selling her property known as LR NO. NGONG/NGONG 51924 (Original Number 14890) in Ongata Rongai, Kajiado County, pending the hearing and determination of the application dated 23rd March, 2016. The application was filed pursuant to Sections 1A, 1B, 2, 3A and 63 (c) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and is premised on the affidavit of the Plaintiff/Applicant annexed thereto.
It is the Plaintiff’s case that sometime in 2011, she obtained a loan from the 1st Defendant against her title for the suit property, and that although there were instances when she was unable to keep up with the payment of the monthly instalments, she made arrangements with the 1st Defendant to pay and did make some lumpsum payments in 2014 amounting to about Kshs 3. 9 million that substantially reduced the debt. She was thus perturbed to learn, on or about 18th March, 2016 from a friend who works for the 1st Defendant, that her property was in the process of being offered for sale.
The Plaintiff further averred that she visited the bank to follow up on the report and was served with two letters dated 27th September, 2013 and 5th February, 2016 respectively, the latter of which purported to provide her with 45 days redemption notice ending on 21st March, 2016. She deponed that despite her best efforts, the 1st Defendant has insisted on having the property auctioned unless the outstanding amount was paid.
The application proceeded exparte after the Court was satisfied that service was effected on the Defendants. The Plaintiff has demonstrated that she was served with a 45 day notice that lapsed on 21st March, 2016 and that the threat of sale is real. Accordingly, I would grant prayer (2) of the Notice of Motion dated 23rd March, 2016 pending the hearing and determination of that application.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 1ST DAY OF APRIL, 2016.
OLGA SEWE
JUDGE