[2006] KEHC 2668 (KLR)
The court found that the Applicants had defaulted on their loan repayments, thereby entitling the 1st Respondent to exercise its statutory power of sale under the Registered Land Act. The evidence showed that the suit property had already been sold at public auction and that payments had been credited to the...
Source-derived case information.
- Citation
- [2006] KEHC 2668 (KLR)
- Parties
- Applicant: John Nzioka Mativo; Applicant: David Muli Mativo t/a Kandolo Wholesalers; Respondent: Industrial Commercial Development Corporation; Respondent: Registrar of Lands
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 197 of 2004
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Legal Topics
- Statutory Power of Sale, Mortgage Default, Injunctive Relief, Notice Requirements, Public Auction, Registered Land Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Nzioka Mativo
Applicant
David Muli Mativo t/a Kandolo Wholesalers
Applicant
Industrial Commercial Development Corporation
Respondent
Registrar of Lands
Respondent
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the 1st Defendant lawfully exercised its statutory power of sale over the charged property.
- 2 Whether the Applicants were entitled to an interim injunction restraining the sale or transfer of the suit property.
- 3 Whether the Respondent complied with the notice requirements under Section 65(2) of the Registered Land Act.
Ratio Decidendi
The court found that the Applicants had defaulted on their loan repayments, thereby entitling the 1st Respondent to exercise its statutory power of sale under the Registered Land Act. The evidence showed that the suit property had already been sold at public auction and that payments had been credited to the Applicants' account. As the sale was a fait accompli, the court held that it could not grant an injunction to restrain the transfer or further dealings with the property. The Applicants' remedy, if any, lay in damages and not in injunctive relief. Accordingly, the application for an interim injunction was dismissed with costs to the Respondents.
Court Disposition
application dismissed with costs
Orders
- The application for interim injunction is dismissed with costs to the Respondents.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 197 of 2004
JOHN NZIOKA MATIVO ……..…….................................................…….….1ST APPLICANT/PLAINTIFF
DAVID MULI MATIVO T/AKANDOLO WHOLESALERS ….....................…2ND APPLICANT/PLAINTIFF
VERSUS
INDUSTRIAL COMMERCIAL
DEVELOPMENT CORPORATION ...............................................................1ST RESPONDENT/DEFENDANT
REGISTRAR OF LANDS ……...….........................................................….2ND RESPONDENT/DEFENDANT
RULING
The applicants by their Chamber Summons of the 26. 7.2005 seek the following orders:-
3. THAT the 1st Defendant by itself, its agents and/or servants and in particular KANDE ENTERPRISES be restrained by an interim injunction from auctioning, selling by private treaty or in any other way whatsoever interfering with the Plaintiffs’ title to the said property including but not limited to execution of the transfer, registration of the transfer and release and issuance of the documents such as the title deed pending the hearing and final determination of this suit r until further Orders of this Honourable Court.
4. THAT the 2nd Defendant by itself, its agents and/or servants be and is hereby restrained from sanctioning and/or otherwise facilitating the transfer of the title of suit property known as L.R. No. SULTAN HAMUD TOWN/131 to any third party.
The application is based on the grounds contained therein and is supported by the supporting affidavit of the 1st Applicant.
The Applicant was given a loan by the 1st Respondent, which was secured by a charge over his property known as Title Number Sultan Hamud Town/131. The loan was to be repaid with interest thereon by installments. The charge states in Clause 7(a) as follows:-
“If the Chargor shall make default in the payment of interest on the days hereinbefore provided or shall fail to pay any of the instalments on the days hereinbefore provided for or within ten days of grace thereafter then and in such case the whole principal amount with interest then remaining due and owing by the Chargor under this security shall immediately become due and payable and the Corporation shall be entitled to recover the same forthwith.”
It is not disputed that the Applicant defaulted in the payments as agreed. Thereupon the Respondent took steps to sell the charged property.
It is the Applicants’ contention that the Respondent should have given to the Applicant a demand notice as provided for under Section 65(2) of the Registered Land Act (Cap 300).
He also contended that a Notification of Sale served on the applicant was defective for the reasons set out in paragraph 8(a) (b) and (c) and 18 of the supporting affidavit.
The Respondent filed a replying affidavit sworn by Grace Magunga a Senior Legal Officer with the 1st Defendant. Annexed to her affidavit are documents, which show that the suit premises were sold on the 27. 7.2005 at Public auction. The annexed copy of the Applicant’s account shows a credit for Kshs.175,000/= and Kshs.500,000/= paid into the account on the 1st and 31st August 2005 respectively.
It appears from a letter of the 31. 8.2005 written by the auctioneer to the 1st Defendant that there was a delay in paying the balance of the purchase price due to misleading information without a court order. However, it is clear that the suit premises have been sold by the 1st Defendant under its statutory power sale and as such the orders sought in paragraph 3 of the application cannot be granted as the sale is a fait accompli. The remedy of the Respondent if any is in damages.
For these reasons, I dismiss this application with costs.
Dated and delivered at Nairobi this 3rd day of May 2006.
P. J. RANSLEY
JUDGE