[2001] KEHC 752 (KLR)
The court found that the issues raised by the applicants, specifically the alleged failure to serve a statutory notice of sale and the alleged breach of the loan agreement by the defendant, are serious matters that require proof through further evidence at the hearing of the main suit. The court held that if these...
Source-derived case information.
- Citation
- [2001] KEHC 752 (KLR)
- Parties
- Plaintiff: Jayanti & Jagdeep Developers Limited; Plaintiff: Jayanti A. Patel; Plaintiff: Jagdeep L. Kotedia; Defendant: Savings and Loan Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2159 of ??
- Procedural Posture
- Civil Case / Interlocutory Application (chamber Summons) for Injunction
- Outcome
- interlocutory injunction granted
- Judges
- JK Mulwa
- Legal Topics
- Injunctive Relief, Statutory Notice of Sale, Breach of Loan Agreement, Mortgage Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jayanti & Jagdeep Developers Limited
Plaintiff
Jayanti A. Patel
Plaintiff
Jagdeep L. Kotedia
Plaintiff
Savings and Loan Kenya Limited
Defendant
Procedural Posture
Civil Case / Interlocutory Application (chamber Summons) for Injunction
Legal Issues
- 1 Whether the defendant served a proper statutory notice of sale on the applicants.
- 2 Whether there was a gross breach of the loan agreement by the defendant rendering the agreement null and void.
- 3 Whether the applicants are entitled to an interlocutory injunction restraining the sale of the property pending hearing of the main suit.
Ratio Decidendi
The court found that the issues raised by the applicants, specifically the alleged failure to serve a statutory notice of sale and the alleged breach of the loan agreement by the defendant, are serious matters that require proof through further evidence at the hearing of the main suit. The court held that if these allegations are ultimately proved, the applicants would be entitled to the reliefs sought. To preserve the subject matter of the suit and prevent irreparable harm, the court granted the interlocutory injunction restraining the sale of the property until the suit is heard and determined. The court emphasized the need for the main suit to be heard expeditiously, noting that...
Court Disposition
interlocutory injunction granted
Orders
- The defendant is restrained from selling the property L.R. No. 1870/111/461 (formerly No. 1870/111/367/368) until the suit is heard and finalised.
- The orders granted shall last until the suit is heard and finalised.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI CIVIL CASE NO. 2159 OF 2000
JAYANTI & JAGDEEP DEVELOPERS LIMITED…………....1ST PLAINTIFF JAYANTI A. PATEL…………………………………….2ND PLAINTIFF JAGDEEP L. KOTEDIA…………………………………3RD PLAINTIFF -VERSUS- SAVINGS AND LOAN KENYA LIMITED……………..DEFENDANT
RULING
The applicant by Chamber Summons dated the 21st and filed on 22nd December, 2000 is asking for Orders restraining the defendant from selling the property L.R. No. 1870/111/461 formerly No. 1870/111/367/368. The application is supported by the grounds that no Statutory Notice of Sale was served on the applicant and secondly there was gross breach of the loan agreement to the extend that the agreement remains null and void leaving the Respondent with no justification to result tot he sale of the property.
The application is opposed on the grounds that a proper Statutory Notice was served on the Respondent and that it is the applicant who is in breach of the agreement between the parties. The Respondent like the applicant has filed a replying affidavit in which it supports its opposition to the application.
The matters raised in the application and in the opposition to it are matters, which call for proof through production of further evidence to what is before me.
I agree with the applicant that the best course for this application is to have the main suit heard the soonest possible. It will be noted that interest will continue to accrue to the detriment of the party who will ultimately lose the case.
Since there is an allegation of breach of the contract by the Respondent and a claim that there was no Statutory Notice served on the applicant matters, if proved to be true would entitle the applicant to the reliefs sought I deem it necessary to allow the application and stop the sale so that the suit can be heard.
I will therefore allow ………….. Chamber Summons. The Orders granted shall last until suit is heard and finalised. The costs shall be in the course.
Delivered and dated this 7th of February, 2001
KASANGA MULWA
JUDGE