[2006] KEHC 919 (KLR)
The court found that the plaintiff had repaid the loan for which L.R. No. 10827/2 was provided as security, and that the security had been substituted and subsequently discharged. The defendant did not contest these facts, having failed to file any response. On a prima facie basis, the court held that there was no...
Source-derived case information.
- Citation
- [2006] KEHC 919 (KLR)
- Parties
- Plaintiff: Jackson Kiprotich Arap Kibor; Defendant: Agricultural Finance Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 258 of 2006
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- Interlocutory injunction granted in favour of the plaintiff; costs of the application awarded to the plaintiff.
- Legal Topics
- Injunctions, Security for Loans, Discharge of Charge, Loan Repayment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Kiprotich Arap Kibor
Plaintiff
Agricultural Finance Corporation
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to an injunction restraining the defendant from dealing with L.R. No. 10827/2 pending determination of the suit.
- 2 Whether the defendant has any legal right to sell or otherwise deal with the suit property after the loan was repaid and the security discharged.
Ratio Decidendi
The court found that the plaintiff had repaid the loan for which L.R. No. 10827/2 was provided as security, and that the security had been substituted and subsequently discharged. The defendant did not contest these facts, having failed to file any response. On a prima facie basis, the court held that there was no justifiable cause for the defendant to take steps to realise the security. Accordingly, the plaintiff was entitled to an injunction restraining the defendant from advertising, selling, transferring, alienating, or otherwise dealing with the property pending the hearing and determination of the suit.
Court Disposition
Interlocutory injunction granted in favour of the plaintiff; costs of the application awarded to the plaintiff.
Orders
- An injunction is granted restraining the defendant from advertising, selling, transferring, alienating, or otherwise dealing with L.R. No. 10827/2 until the hearing and determination of the suit.
- The costs of the application dated 10th May 2006 are awarded to the plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS Civil Case 258 of 2006
JACKSON KIPROTICH ARAP KIBOR…………............................………PLAINTIFF
VERSUS
AGRICULTURAL FINANCE CORPORATION……..........................…DEFENDANT
R U L I N G
The plaintiff has brought this application, seeking an injunction to restrain the defendant from selling, advertising, alienating or in any other manner dealing with his property, L.R. No. 10827/2.
It is the plaintiff’s case that the title to that property had been deposited with the defendant as security for a loan which the plaintiff obtained from the said defendant.
It is also the plaintiff’s case that the security for the loan was later substituted with a charge over the property UASIN GISHU MAFUTA SETTLEMENT SCHEME/1. At that point, the defendant was obliged to discharge L.R. No. 10827/2, but the defendant failed to do so.
In any event, the plaintiff avers that he paid off the entire loan, resulting in the defendant discharging the charge over UASIN GISHU MAFUTA SETTLEMENT SCHEME/1.
Following the repayment of the loan which had initially been secured by the suit property, the plaintiff submits that the defendant has absolutely no legal right to seek to sell of the said property.
When the defendant was served with the Plaint as well as with the plaintiff’s application, they entered appearance through the firm of CYRIL S. WAYONG’O, ADVOCATE. The memorandum of appearance is dated 29th May 2006, and it was filed in court on 31st May 2006.
Then, on 13th June 2006, Mr. Ogunde held brief for Mr. Wayongo advocate, and informed the court that the parties were holding negotiations. In order to give the parties an opportunity to continue the said negotiations, the defendant asked that the injunction application be adjourned indefinitely, whilst the status quo was to be maintained.
Thereafter, the advocates for the two parties met at the High Court registry (through their respective proxies), and set down the application for hearing on 25th July 2006.
It is noteworthy that the hearing date was fixed on 23rd June 2006. In effect, it was more than one month before the date when the application was set down for hearing.
Notwithstanding the fact that the defendant’s advocates had entered appearance on 31st May 2006, and also that they consented to the application being heard on 25th July 2006, the defendant had filed neither a replying affidavit, nor a defence, by the time the application came for hearing.
In the circumstances, I accept the plaintiff’s application and the affidavit in support thereof, as being uncontroverted. Therefore, on a prima facie basis, I hold that the plaintiff has repaid the money which had been lent to him by the defendant, and in relation to which the suit property had been tendered as security. There would thus be no justifiable cause for the defendant taking steps to realise the security.
Accordingly, an injunction order is hereby granted to restrain the defendant, whether by themselves or through their agents or assigns, from advertising, selling, transferring, alienating or in any other manner dealing with the plaintiff’s property, L.R. No. 10827/2. This order shall remain in force until the hearing and determination of this shit.
Finally, the costs of the application dated 10th May 2006 are awarded to the plaintiff.
Dated and Delivered at Nairobi, this 30th day of October 2006.
FRED A. OCHIENG
JUDGE