[2015] KEHC 4736 (KLR)
The court found that the plaintiffs had admitted the debt owed to the 1st defendant and that the only substantial issue raised was the rendering of accounts, which the court deemed an afterthought given the admission. The plaintiffs failed to establish a prima facie case with a likelihood of success as required for...
Source-derived case information.
- Citation
- [2015] KEHC 4736 (KLR)
- Parties
- Plaintiff: John Kayeli Olaka; Plaintiff: Alfred Adan Olaka; Defendant: National Bank of Kenya; Defendant: Keysian Auctioneers
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Case 5 of 2015
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Legal Topics
- Injunctive Relief, Debt Recovery, Account Rendering, Mortgage Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kayeli Olaka
Plaintiff
Alfred Adan Olaka
Plaintiff
National Bank of Kenya
Defendant
Keysian Auctioneers
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs have established a prima facie case to warrant the grant of an interlocutory injunction restraining the auction of the charged property.
- 2 Whether the bank is obliged to render accounts for an admitted debt before exercising its statutory power of sale.
Ratio Decidendi
The court found that the plaintiffs had admitted the debt owed to the 1st defendant and that the only substantial issue raised was the rendering of accounts, which the court deemed an afterthought given the admission. The plaintiffs failed to establish a prima facie case with a likelihood of success as required for the grant of an interlocutory injunction. Consequently, the application to restrain the auction did not satisfy the first test in Giella v Cassman Brown and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 18th May 2015 seeking to injunct the intended auction is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CIVIL CASE NO. 5 OF 2015
JOHN KAYELI OLAKA…………………………………. 1ST PLAINTIFF
ALFRED ADAN OLAKA………………………………… 2ND PLAINTIFF
VERSUS
NATIONAL BANK OF KENYA …………………………1ST DEFENDANT
KEYSIAN AUCTIONEERS……………………………….2ND DEFENDANT
RULING
The auction sought to be stopped is scheduled for today at 11. 00 a.m. and follows a 45 day notice given by the 1stDefendant on 3rd March 2015. This notice informs the Plaintiffs that the sale of Bukhayo/Mudika/3050 shall proceed unless they pay the sum of Kshs. 58,137,342/-
In what must be a reaction to that letter, the Plaintiff wrote to the 1st Defendant on 10th March 2015 admitting the debt and then made the plea,
“However, we write in respect of the above mentioned plot where the deceased children are residing who have no father or mother. Kindly furnish us with the necessary information concerning this particular plot to enable us make arrangements of paying this particular debt.”
The Plaintiffs now bring thisAction complaining that the bank has declined and/or neglected to render accounts of thedebt. What accounts need to be rendered for an admitted debt? is this not an afterthought by the Plaintiffs?
The issue of accounts being the only substantial issue raised in the Plaint, I am able to say, given the Plaintiffs’ admission of the debt, that it discloses a serious issue. It does not reveal a prima facie case with a likelihood of success. Being of thatpersuasion, I take the position that the Application dated 18th May 2015 seeking to injuct the intended auction does not pass muster. It fails the 1st test in Giella vs Cassman Brown.
I dismiss it with cost.
F. TUITOTT
JUDGE
20/5/2015
DATED, SIGNED AND DELIVERED AT BUSIA THIS 20TH DAY OF MAY 2015.
IN THE PRESENCE OF:
OILE………………………………………………………..COURT CLERK
JUMBA FOR …………………………………………….APPLICANT/PLAINTIFF
BOKONGO FOR…………………………1ST DEFENDANT/2ND RESPONDENT