[2022] KEHC 12766 (KLR)

James Wainaina Waweru v Sidian Bank Limited & 2 others (Civil Suit E006 of 2022) [2022] KEHC 12766 (KLR) (1 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12766 (KLR)

Republic of Kenya

In the High Court at Murang'a

Civil Suit E006 of 2022

K Kimondo, J

September 1, 2022

Between

James Wainaina Waweru

Plaintiff

and

Sidian Bank Limited

1st Defendant

Eden Oils Limited

2nd Defendant

County Land Registrar, Murang’a

3rd Defendant

Ruling

1. The plaintiff craves an injunction to restrain the 1st defendant from exercising its statutory power of sale over his land known as LR No Makuyu/Kambiti/Block 1/71 (hereafter the suit property) pending the hearing and determination of this suit. He also prays for costs.

2. The notice of motion is dated June 6, 2022 and predicated upon the plaintiff’s deposition of even date and a further affidavit sworn on July 12, 2022.

3. The key facts are as follows: Sometime in 2019, the plaintiff wasexperiencing financial difficulties and decided to sell the suit property. He was introduced by a mutual friend to a director of Eden Oils Limited (the 2nd defendant and hereafter the borrower) who agreed to buy it for Kshs. 35,000,000. A copy of the sale agreement dated May 21, 2019 is attached to the further affidavit.

4. The trouble however was that the purchaser was not in funds. He paid a deposit of Kshs 2,200,000 and persuaded the plaintiff to charge the suit land to obtain the balance. The purchaser became the borrower. The plaintiff concedes that he executed a charge to secure a loan of Kshs 22,000,000 advanced to the borrower. Again, a copy of the charge dated June 3, 2019 is attached to the supporting affidavit.

5. Default has occurred and the 1st defendant bank has moved to realize its security. The plaintiff’s case is on a three-strand: Firstly, that it was never served with the redemption notices which in any case were sent to the wrong postal address. In this regard, he only learnt of the auction from a friend on May 23, 2022 who saw the property listed in the Daily Nation for the auction on June 9, 2022.

6. Secondly, he avers that the consent of the Land Control Board was not obtained. Thirdly, he complains at paragraph 7 of the further affidavit, that had he received proper notices, “he would have looked for means to ensure that the entire loan is repaid…or to sell the property by private treaty which [would] definitely fetch more money than a public auction”.

7. In a synopsis, the plaintiff contends that the auction sale is illegal; and, that he will suffer irreparable harm not compensable by damages.

8. The motion is contested. There is a replying affidavit sworn on June 17, 2022 by Jackline Ndung’u, the 1st defendant’s senior legal officer. She avers that besides the charge, the plaintiff also executed a personal guarantee and indemnity (exhibit JN2) to secure the borrowing.

9. Upon default, the bank served a 90 days’ redemption notice to the plaintiff, his spouse and the borrower. The borrower sought for accommodation or re-scheduling of the debt but default persisted.

10. She avers that a further 40 days’ notice was served on January 12, 2022 in compliance with section 96 (2) of the Land Act. According to a valuation report (annexture JN8) by Amazon valuers, the forced sale value is Kshs 20,250,000. The bank then instructed Antique Auctioneers who issued a further 45 days’ notice to the chargor, his wife and the borrower. It is averred that the chargor was served but declined to acknowledge the notice.

11. In a nutshell, the 1st defendant submitted that default has persisted; that all the requisite notices were served upon the plaintiff, his spouse and the borrower; that a recent valuation was conducted; and, that the bank’s right of sale has crystalized.

12. The plaintiff lodged written submissions on July 14, 2022 with a list of authorities. The 1st defendant filed submissions on July 1, 2022 with a bundle of precedents.

13. On July 28, 2022, I heard further arguments from learned counsel for the plaintiff and 1st defendant.

14. I should point out that despite being served, the 2nd and 3rd defendants neither appeared at the hearing nor filed any submissions.

15. I take the following view of the matter. The motion is primarily anchored upon order 40 of the Civil Procedure Rules 2010 , sections 90 (2) and 96 (2) of the Land Act, and section 6 (1) of the Land Control Act.

16. The principles governing the grant of prohibitive injunctions are well settled. See Giella v Cassman Brown and Company Limited [1973] EA 358. Those principles are first, that the applicant must show a prima facie case with a probability of success; secondly that he stands to suffer irreparable harm not compensable in damages; and thirdly, if in doubt, the court must assess the balance of convenience.

17. Being a discretionary remedy, there is also ample authority that a party, who has acted in a manner not acceptable to a court of equity, will be denied the remedy. See Kenya Hotels Limited v Kenya Commercial Bank and another [2004] 1 KLR 80, George Munge v Sanjeev Sharma & 3 others HCCC ELC 677 of 2011 [2012] eKLR.

18. In Mrao Limited Vs First American Bank of Kenya Ltd and others [2003] KLR 125, the Court of Appeal stated that a prima facie case is one – 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 or rebuttal from the latter.

19. The main suit remains unheard. I restrain myself from pre-judging the matter. But I can safely state the following: The borrower executed the letter of offer and its supplement (exhibits JN1A & B). The plaintiff freely concedes that he offered his land as security and executed the charge dated June 3, 2019 for Kshs 22,000,000 on the security of the suit land. In addition, he executed a personal guarantee and indemnity in favour of the bank.

20. Default has occurred and neither the plaintiff nor the borrower have repaid in full the principal sums or interest. The bank states that as at August 30, 2021, the amount outstanding was Kshs 25,511,438. 88. I say that carefully and without making a finding. That will be the true province of the trial court.

21. Regarding the procedure of sale, the plaintiff’s case is that he was not served with requisite notices; and, that the consent of the Land Control Board was not obtained. His learned counsel referred me to page 2 of the charge which shows that the plaintiff’s address is PO Box 259-00507 Nairobi.

22. True, the statutory notice was addressed to PO Box 53952-00200. But I have also noted that the joint notice was addressed to two other persons, Simon Murimi and Alex Mbiu at the plaintiff’s postal address: Box 259-00507 Nairobi.

23. Learned counsel explained it away thus: that the plaintiff would return any mail wrongly addressed to him. But this must be weighed against the plaintiff’s supporting affidavit. At paragraph 5 he avers that “Francis introduced me to Simon Murimi whom he introduced as the CEO of Eden Oils Ltd [the borrower]”. That is the person he negotiated with to buy his land at Kshs 35,000,000.

24. Furthermore, the auctioneer’s notification of sale dated March 28, 2022 states that it was served on the plaintiff “but he declined to sign”. In the further affidavit sworn on July 12, 2022, the plaintiff is completely silent on the matter.

25. In the circumstances, I am not satisfied at this stage that the plaintiff was not served with any statutory notice or that he was completely in the dark about the intended sale. But I say that guardedly and without a final finding.

26. Regarding the consent of the Land Control Board, I agree with the plaintiff that this was agricultural land and that it was necessary. The letter of consent attached refers to an application made on May 30, 2019. Yet the approval was done on May 23, 2019. The trial court will no doubt look into the discrepancy. The plaintiff also denies signing the application form for the consent. I cannot at this stage fully establish whose signature(s) it is that appears on that application. Again, it will be the province of the trial court.

27. With regard to valuation of the property, I am satisfied at this stage that the bank carried out a valuation through Amazon valuers (exhibit JN8) dated February 15, 2022. The forced sale value is Kshs 20,250,000. The auction was slated for June 9, 2022.

28. Granted those circumstances, I am hard pressed to say that the plaintiff has established a prima facie case for grant of interlocutory injunction. The value of the land or the damage that may arise here can also be ascertained. And I did not hear the plaintiff to say that the 1st defendant bank cannot meet the damages.

29. Having reached that conclusion, I do not need to weigh the balance of convenience.Kenya Commercial Finance Company Ltd v Afraha Education Society [2001] 1 EA 86.

30. The upshot is that the plaintiff’s notice of motion dated June 6, 2022 is devoid of merit. It is hereby dismissed with costs to the 1st defendant.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 1ST DAY OF SEPTEMBER 2022. KANYI KIMONDOJUDGEORDERThe date for delivery of this ruling was taken in open court in the presence of both parties or their legal counsel. Pursuant to the Practice Directions by the Hon Chief Justice; and, the parties’ consent on 28th July 2022, this ruling has been delivered to the parties by electronic mail. Both parties have accordingly waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.KANYI KIMONDOJUDGERuling read in chambers in the presence of:Ms. Susan Waiganjo, Court Assistant.