[1992] KEHC 114 (KLR)
The court found that the grounds upon which the injunction was originally granted—namely, the supersession of the initial statutory notice by a new agreement—no longer subsisted. The plaintiff had failed to make any repayments under the new agreement, and a fresh statutory notice had been properly served in...
Source-derived case information.
- Citation
- [1992] KEHC 114 (KLR)
- Parties
- Plaintiff: Kalinga; Defendant: Trade Bank Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 60 of 1991
- Procedural Posture
- Civil Case / Ruling on Application to Discharge Injunction
- Outcome
- application allowed; injunction discharged
- Legal Topics
- Injunction Discharge, Statutory Notice, Chargee Rights, Loan Default
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kalinga
Plaintiff
Trade Bank Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Discharge Injunction
Legal Issues
- 1 Whether the injunction restraining the exercise of the chargee's statutory power of sale should be discharged due to new circumstances.
- 2 Whether the grounds for the initial injunction still subsist after the issuance of a fresh statutory notice under the new agreement.
Ratio Decidendi
The court found that the grounds upon which the injunction was originally granted—namely, the supersession of the initial statutory notice by a new agreement—no longer subsisted. The plaintiff had failed to make any repayments under the new agreement, and a fresh statutory notice had been properly served in accordance with the terms of that agreement. The respondent did not contest these facts. As a result, the injunction restraining the defendant from exercising its statutory power of sale was deemed unnecessary and irrelevant. The court therefore discharged the injunction and allowed the application with costs to the applicant.
Court Disposition
application allowed; injunction discharged
Orders
- The injunction granted on 22nd March 1991 is discharged.
- The application by Trade Bank Ltd is allowed with costs.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
Kalinga v Trade Bank Ltd
High Court, at Mombasa December 4, 1992 Wambilyangah J
Civil Case No. 60 of 1991
December 4, 1992, Wambilyangah J delivered the Ruling.
This is the application by Trade Bank Limited seeking that the Order for injunction given by this court on the 22nd of March 1991 restraining it from exercising its chargee’s statutory rights to sell chargor’s property be discharged on the ground that fresh circumstances which have come into play have rendered the injunction unduly harsh, unnecessary or unworkable. The application has been framed under Order XXIV rule 4 of the Civil Procedure Rules.
The injunction was granted on the sole ground that the statutory notice which was issued and served by the Bank under S. 69A of the Transfer of Property Act (19882) of India, on the 31st July 1990 was superseded by the fresh arrangements between the parties which were embodied in an agreement dated 6th August 1990.
But in paragraph 6 of the affidavit sworn by Gideon Ndambuki on the 20th December 1991 to support the present application it is averred that since the loan facility was granted to the plaintiff on the 6th August 1990 the plaintiff never made an repayments of either principal or the interest thereon. And as at the 10th of April 1991 the outstanding loan was Kshs.19,296,306/75 and on that sum interest at 19% per annum was being charged.
According to paragraph 4 of the same affidavit a fresh statutory notice was served on the chargor. This notice was issued within the terms of the new agreement of 6th August 1990 which, admittedly, governs the relationship of the parties inter-se.
All the matters deponed to in the applicant’s affidavit were not procedurally controverted since the Respondent did not file his affidavit in-reply to the application. I am thus constrained to accept the applicant’s allegations as proved.
In the circumstances I hold that it has been adequately demonstrated by the applicant that the very grounds for which the injunction dated 23rd March 1991 was issued by the court do not subsist any more. So the injunction is now entirely unnecessary and irrelevant. It is discharged accordingly. It follows that the application is allowed with costs.