[2020] KEHC 2751 (KLR)
The court declined to alter or clarify the status quo order previously issued by Sewe J., noting the absence of a clear record of the proceedings and the judge's intention regarding the order. The court found no basis to interfere with the earlier decision, especially since the sale date was set for a future date...
Source-derived case information.
- Citation
- [2020] KEHC 2751 (KLR)
- Parties
- Applicant: Prof Julius Onyango Ochuodho and 31 Others; Respondent: Kissony Welfare Group Limited and 8 Others; Respondent: Sidian Bank Ltd; Respondent: Keysiaan Auctioneers; Defendant: Prof Abuya
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 28 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Injunction
- Outcome
- Application for further or specific injunctive relief declined; matter to be listed for hearing before Sewe J.
- Judges
- DO Ohungo
- Legal Topics
- Interlocutory Injunctions, Status Quo Orders, Public Auction of Land, Loan Security Enforcement, Eviction Risk, Valuation and Sale of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Prof Julius Onyango Ochuodho and 31 Others
Applicant
Kissony Welfare Group Limited and 8 Others
Respondent
Sidian Bank Ltd
Respondent
Keysiaan Auctioneers
Respondent
Prof Abuya
Defendant
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicants are entitled to an order prohibiting the respondents from alienating or disposing of the suit property pending hearing and determination of the appeal.
- 2 Whether the status quo order previously issued by the court should be clarified or made more specific.
- 3 Whether the intended sale of the property by public auction should be stayed in light of the outstanding loan and prevailing circumstances.
Ratio Decidendi
The court declined to alter or clarify the status quo order previously issued by Sewe J., noting the absence of a clear record of the proceedings and the judge's intention regarding the order. The court found no basis to interfere with the earlier decision, especially since the sale date was set for a future date and the matter could be heard before the auction. The application for further or more specific injunctive relief was therefore not granted, and the matter was directed to be listed before Sewe J. for hearing prior to the scheduled auction date.
Court Disposition
Application for further or specific injunctive relief declined; matter to be listed for hearing before Sewe J.
Orders
- The matter is to be listed for hearing on 2nd September 2020 before Sewe J.
- No alteration or clarification of the status quo order is made.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CIVIL APPEAL NO 28 OF 2020
PROF JULIUS ONYANGO OCHUODHO
AND 31 OTHERS...........................................................................APPLICANTS
VERSUS
KISSONY WELFARE GROUP LIMITED AND 8 OTHERS........RESPONDENT
RULING
1. The applicants filed an application seeking orders prohibiting the respondents, SIDIAN BANK LTD and KEYSIAAN AUCTIONEERS from alienating or otherwise disposing of parcel No. KIBOS/LONDIANI LR 757 (6286) measuring 52. 5 acres. The said property has been advertised for sale through public auction (which process is contested), and the applicant’s greatest apprehension is that due to the prevailing restrictive situation caused by the C19 pandemic, there are likely to be very few bidders, and only bidders within the locality where the property is situated in the bidding. The applicants make the application in their capacity as proprietors and they maintain that there is an urgent need to safeguard their interest.
2. When the matter came up on 19/08/2020 for directions on the application, the applicant’s counsel Miss Chesoo informed the court that when they were last before Sewe (J) on 5/08/2020, an order of status quo was issued and the same was extracted and served on SIDIAN BANK (the 7th defendant). She laments that despite this, and in an act of extreme bad faith, the 7th defendant has advertised sale of the property in the Daily Nation of 17/08/2020 reiterating their intention to sell the property. It is due to this that counsel seeks for specificity of the order.
3. It is submitted that the property is in danger of being alienated by the sale yet the applicants are in possession of the same and risk being evicted, so stay/injunctive orders are desirable. That once they are evicted, then pursuing this suit will be a purely academic exercise. It is drawn to this court’s attention that whereas the loan sought is only Kshs. 7. 5M, the property has been valued at Kshs. 30M, and it is their contention that stay of the sale will not prejudice the 7th defendant who can be compensated by the applicant’s. The applicants express a willingness to comply with any orders this court may issue, without prejudicing the interests of the defendants. This position is shared by the 1st -5th defendant who point out that the loan given out was Kshs.20M, most of which has been paid, leaving an outstanding balance of 7. 5 M.
4. The 7th respondent is opposed to any interim orders being issued, and Mr Maina on its behalf points out that when the matter was presented before Sewe (J), she declined to grant interim injunction on grounds that the sale was set for a far off date in September 2020, and she was of the view that the matter could be heard before the intended auction fell due, and that nothing has changed as the sale is due on 9th September.
5. Unfortunately the record of proceedings before Sewe (J) are not in the court record (I suspect it may have been a virtual session and the proceedings have not been downloaded), and I am hesitant to infer the meaning of status quo that the judge intended, was it to preserve the status of the property, or status of ongoing activity? If indeed the judge was of the view that the matter could be heard and determined before the date of the sale, then I would have no basis for making any alteration. I direct that the matter be listed for hearing on 2nd September 2020 before Sewe (J) who will be the vacation duty judge.
E-delivered and dated this 26th day of August 2020 at Eldoret
H.A. OMONDI
JUDGE
Present Mr. Maina
Miss Chesoo
Prof Abuya for 6th Deft