[2006] KEHC 3102 (KLR)
The court found that serious issues had been raised regarding the validity of the charge, including allegations of forgery and lack of consent by the Plaintiff. The Plaintiff denied executing the power of attorney relied upon by the Defendant, and the alleged admission of indebtedness was ambiguous and did not...
Source-derived case information.
- Citation
- [2006] KEHC 3102 (KLR)
- Parties
- Plaintiff: Kanja Kamau Gitau; Defendant: Industrial & Commercial Development Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 656 of 2005
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application for Temporary Injunction
- Outcome
- Temporary injunction granted pending hearing and disposal of the suit.
- Judges
- DW Mbuteti
- Legal Topics
- Temporary Injunctions, Statutory Power of Sale, Mortgage and Charge Disputes, Prima Facie Case, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kanja Kamau Gitau
Plaintiff
Industrial & Commercial Development Corporation
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case with a probability of success to warrant a temporary injunction.
- 2 Whether the Plaintiff stands to suffer irreparable loss if the injunction is not granted.
- 3 Whether the balance of convenience favors granting the injunction.
Ratio Decidendi
The court found that serious issues had been raised regarding the validity of the charge, including allegations of forgery and lack of consent by the Plaintiff. The Plaintiff denied executing the power of attorney relied upon by the Defendant, and the alleged admission of indebtedness was ambiguous and did not clearly refer to the suit property or charge. Given these unresolved issues and the potential for substantial loss to the Plaintiff, the court determined that the balance of convenience favored granting a temporary injunction to preserve the status quo pending trial. The Plaintiff was required to file an undertaking as to damages.
Court Disposition
Temporary injunction granted pending hearing and disposal of the suit.
Orders
- A temporary injunction is issued as sought in prayer no. 2 of the application, restraining the Defendant from exercising its statutory power of sale pending hearing and disposal of the suit.
- The Plaintiff shall file an appropriate undertaking as to damages within seven days of delivery of this ruling.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 656 of 2005
KANJA KAMAU GITAU…………..............................................................……….……PLAINTIFF/APPLICANT
VERSUS
INDUSTRIAL & COMMERCIALDEVELOPMENT CORPORATION……...DEFENDANT/RESPONDENT
R U L I N G
The Plaintiff seeks by chamber summons dated 18th November, 2005 a temporary injunction under Order 39, rules 1, 2 and 3 of the Civil Procedure Rules to restrain the Defendant from, in effect, exercising its chargee’s statutory power of sale pending hearing and disposal of the suit. The application is premised upon the grounds that the Plaintiff has never at any time authorized and/or consented to the charge of his property to the Defendant to secure any loan facility for himself or any other person; that the Defendant relied on forged documents to charge the Plaintiff’s property; that the person to whom the Defendant offered the loan facility is a stranger to the Plaintiff; and that sale of the Plaintiff’s property will prejudice him and that he will suffer substantial loss thereby. There is an affidavit sworn by the Plaintiff in support of the application.
The Defendant has opposed the application upon the grounds set out in the replying affidavit sworn by one ISAAC B. MOGAKA, the Corporation Secretary of the Defendant. One of those grounds is that the Plaintiff has admitted in writing his indebtedness to the Defendant upon the charge.
As this is an application for temporary injunction pending hearing and disposal of the suit, the Plaintiff needs to show, one, that he has a prima facie case with a probability of success and, two, that he stands to suffer irreparable loss unless the order sought is granted. If in doubt the court must decide the application on a balance of convenience. I have read the supporting and opposing affidavits. I have also considered the submissions of the learned counsels appearing. I prefer to decide this application on a balance of convenience. The Plaintiff has challenged the validity of the charge. It is apparent that the charge was executed, not by the Plaintiff, but by another person upon the strength of a power of attorney which the Plaintiff has denied he donated. It is also apparent that the Plaintiff himself was not the beneficiary of the facility extended by the Defendant upon the charge. Though the Defendant has claimed that the Plaintiff did, by letter dated 23rd January, 1998, acknowledge his indebtedness to the Plaintiff upon the charge, that letter, which is annexed to the replying affidavit, does not clearly and unambiguously refer to the suit property or the charge in question. Serious issues as raised in the pleadings have been joined in this suit. It is convenient that they be tried and settled at the trial. For this reason I am inclined to allow the application. There shall be temporary injunction as sought in prayer no. 2 of the application pending hearing and disposal of the suit. The Plaintiff shall file an appropriate undertaking as to damages within seven days of delivery of this ruling. Costs of the application shall be in the course. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 15TH DAY OF MARCH, 2006.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 17TH DAY OF MARCH, 2006.