[2007] KEHC 3461 (KLR)
The court found that there was no proof that the Plaintiff was served with the statutory notice as required by law before the sale of the property. The notice produced was dated 20th August 1998, but the sale occurred 7 years later, and no evidence of service was provided. The court held that the validity of the...
Source-derived case information.
- Citation
- [2007] KEHC 3461 (KLR)
- Parties
- Plaintiff: Joel Kipsewer Kendagor; Defendant: Kirigiriro Self Help Group; Defendant: Kenya Commercial Bank; Defendant: John Kamau Kimani; Defendant: Samuel Kamau Munga; Defendant: Peter Njoroge Waweru
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 58 of 2006
- Procedural Posture
- Civil Suit / Interlocutory Application Ruling
- Outcome
- Interim orders granted in terms of prayers 2, 3, and 5 of the application dated 2nd May 2006, with costs to the Plaintiff and the Second to Fifth Defendants.
- Legal Topics
- Statutory Notice Requirements, Mortgagee Sale Procedure, Service of Process, Interim Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Kipsewer Kendagor
Plaintiff
Kirigiriro Self Help Group
Defendant
Kenya Commercial Bank
Defendant
John Kamau Kimani
Defendant
Samuel Kamau Munga
Defendant
Peter Njoroge Waweru
Defendant
Procedural Posture
Civil Suit / Interlocutory Application Ruling
Legal Issues
- 1 Whether the Plaintiff was served with the statutory notice as required by Section 74 of the Registered Land Act before the sale of the property.
- 2 Whether the statutory notice dated 20th August 1998 was valid and properly served given the sale occurred 7 years later.
- 3 Whether the Plaintiff is entitled to interim orders pending the hearing of the suit.
Ratio Decidendi
The court found that there was no proof that the Plaintiff was served with the statutory notice as required by law before the sale of the property. The notice produced was dated 20th August 1998, but the sale occurred 7 years later, and no evidence of service was provided. The court held that the validity of the notice was questionable and, on a balance of probability, the Plaintiff's case had a high probability of success. Consequently, the court granted the interim orders sought by the Plaintiff, pending the hearing and determination of the suit.
Court Disposition
Interim orders granted in terms of prayers 2, 3, and 5 of the application dated 2nd May 2006, with costs to the Plaintiff and the Second to Fifth Defendants.
Orders
- Interim orders as sought in prayers 2, 3, and 5 of the application dated 2nd May 2006 are granted.
- Costs awarded to the Plaintiff and the Second to Fifth Defendants.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Civil Suit 58 of 2006
JOEL KIPSEWER KENDAGOR………………………….………PLAINTIFF
=VERSUS=
KIRIGIRIRO SELF HELP GROUP…………..……………1ST DEFENDANT
KENYA COMMERCIAL BANK……………...……...…….2ND DEFENDANT
JOHN KAMAU KIMANI……………………….....…..…….3RD DEFENDANT
SAMUEL KAMAU MUNGA…………………..….....……..4TH DEFENDANT
PETER NJOROGE WAWERU .........................................5TH DEFENDANT
RULING
I have considered the application, affidavits and submissions. The Plaintiff pleaded that he was not served with the Statutory Notice before the Sale as required by Section 74 of the Registered Land Act. The Defendant claimed it has served the Statutory Notice.
The alleged Statutory notice is dated 20th August 1998. The purported sale of the property was 6th – 29th August,2007 – 7 years later. In the Replying Affidavit, there was no proof of service of the said notice. The notice is given 7 years later. The validity of this notice is questionable.
On a balance of probability, I find that in the absence of the Notice, the Plaintiff’s case has a high probability of success.
I do hereby grant the Interim Orders as sought in prayers 2, 3 and 5 of the application dated 2nd May 2006 with costs to the Plaintiff and the Second - Fifth Defendants. Defendants are a Self-Help Group comprising of Wanainchi. This Court usually lets the matters be heard on its merits. However, I think that justice requires that this Court proposes and requests the Kenya Commercial Bank Limited to consider canceling this sell and refunding the money put by the Self Help Group to alleviate their suffering. The Bank will not wholly be prejudiced as it can re-issue the Statutory Notice afresh and then sell the property. Otherwise, this suit will pend yet it may not be for the benefit of any party. This is only a suggestion as this Court is not totally without feelings and this is a case where even the Bank can intervene as matter of social responsibility.
DATED AND DELIVERED AT ELDORET ON THIS 3RD DAY OF DECEMBER 2007
M.K. IBRAHIM,
JUDGE.