[2001] KEHC 753 (KLR)
The court found that there were serious allegations regarding the service of statutory notice and breach of the loan agreement, which could only be resolved through a full hearing of the main suit. Given the potential for irreparable harm to the applicant if the property were sold before these issues were...
Source-derived case information.
- Citation
- [2001] KEHC 753 (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
- Civil Case 1972 of 2000
- Procedural Posture
- Chamber Summons / Interlocutory Application Ruling
- Outcome
- application allowed
- 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
Chamber Summons / Interlocutory Application Ruling
Legal Issues
- 1 Whether the defendant served a valid statutory notice of sale on the applicant.
- 2 Whether there was a breach of the loan agreement by the defendant rendering the agreement null and void.
- 3 Whether the applicant is entitled to interlocutory orders restraining the sale of the property pending hearing of the main suit.
Ratio Decidendi
The court found that there were serious allegations regarding the service of statutory notice and breach of the loan agreement, which could only be resolved through a full hearing of the main suit. Given the potential for irreparable harm to the applicant if the property were sold before these issues were determined, and the fact that the applicant had raised arguable points, the court held that the balance of convenience favored granting interlocutory relief. The court therefore allowed the application and restrained the defendant from selling the property until the suit was heard and finalized.
Court Disposition
application allowed
Orders
- The defendant is restrained from selling property L.R. No. 1870/111/461 (formerly No. 1870/111/367/368) until the suit is heard and finalized.
- The orders granted shall last until the suit is heard and finalized.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIV CASE 1972 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