[2007] KEHC 1883 (KLR)
The court found that the defendant/applicant had not approached the court with clean hands, as it had contributed to the delay and complications in the matter through ongoing negotiations, procedural applications, and correspondence. The court was not satisfied that the plaintiff was in default as alleged, and the...
Source-derived case information.
- Citation
- [2007] KEHC 1883 (KLR)
- Parties
- Plaintiff: James Njuguna Ng'ang'a; Defendant: Housing Finance Company of (K) Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 649 of 2000
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Discharge Injunction
- Outcome
- application dismissed with costs to the respondent
- Judges
- JM Khamoni
- Legal Topics
- Injunction Discharge, Statutory Power of Sale, Mortgage Disputes, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Njuguna Ng'ang'a
Plaintiff
Housing Finance Company of (K) Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Discharge Injunction
Legal Issues
- 1 Whether the injunction issued on 13th April 2000 should be discharged to allow the defendant to exercise its statutory power of sale.
- 2 Whether the plaintiff is servicing the debt and whether the defendant is acting in good faith.
Ratio Decidendi
The court found that the defendant/applicant had not approached the court with clean hands, as it had contributed to the delay and complications in the matter through ongoing negotiations, procedural applications, and correspondence. The court was not satisfied that the plaintiff was in default as alleged, and the defendant's conduct undermined its application to discharge the injunction. As a result, the court dismissed the application, holding that the injunction should remain in place and the defendant was not entitled to the orders sought.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Notice of Motion dated 9th November 2006 is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 649 OF 2000
JAMES NJUGUNA NG'ANG'A ……..................… PLAINTIFF/RESPONDENT
VERSUS
HOUSING FINANCECOMPANY OF (K) LTD ………… DEFENDANT/APPLICANT
RULING
In this Notice of Motion dated 9th November 2006, the Applicant, who is the Defendant in this suit, is seeking orders to have the injunction issued by this court in this suit on 13th April 2000 be discharged with all the consequential orders thereto.
The Applicant says that this is because the grant and pendancy of the said injunction is hindering him from exercising his statutory power of sale to realize lawful security and recover monies due to him; and that the injunction has ceased to serve the ends of justice;
and that the existence of the said injunction obstructs the expeditious disposal and determination of the main suit; that there are numerous bidders expressing their interest in the suit property and should be allowed to buy the property; and that the Plaintiff Respondent is not servicing the debt.
The Plaintiff/Respondent does not accept that he is not servicing the debt and I find that what he says in reply casts doubt upon the claims made by the Defendant/Applicant as it appears that the Defendant/Applicant has been actively contributing to the situation the Defendant/Applicant is now complaining about for there have been continuous negotiations leading to some agreements, application to dismiss the suit for want of prosecution and withdrawal of such application, exchange of correspondence and other associations of the parties so that in the end the Defendant/Applicant does not appear to be before this court with clean hands and as a result Mr. Simiyu, counsel for the Applicant before me, could not rebut what M/S Wekesa, counsel for the Respondent told me in reply during the hearing of this Notice of Motion.
The above being the position, the said Notice of Motion is hereby dismissed with costs to the Respondent.
Dated this 23rd day of July 2007.
J. M. KHAMONI
JUDGE