[2000] KECA 16 (KLR)
The Court found that the applicants had raised serious issues for determination in the intended appeal, particularly regarding the validity of the charge due to alleged non-compliance with statutory requirements for execution and explanation before an advocate. The applicants had provided affidavit evidence which...
Source-derived case information.
- Citation
- [2000] KECA 16 (KLR)
- Parties
- Applicant: Lalchand Fulchand Shah; Applicant: Rambhaben Lalchand Shah; Respondent: Investments & Mortgages Bank Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 165 of 2000
- Procedural Posture
- Civil Application / Application for Injunction Pending Intended Appeal
- Outcome
- Application allowed; injunction granted pending appeal.
- Legal Topics
- Injunction Pending Appeal, Validity of Charge, Power of Sale, Burden of Proof, Ascertainment of Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lalchand Fulchand Shah
Applicant
Rambhaben Lalchand Shah
Applicant
Investments & Mortgages Bank Limited
Respondent
Procedural Posture
Civil Application / Application for Injunction Pending Intended Appeal
Legal Issues
- 1 Whether the applicants executed the charge before an advocate as required by law.
- 2 Whether the effect of the charge was explained to the applicants as required by the Transfer of Property Act.
- 3 Whether the respondent's demand for varying sums affects the validity of the power of sale.
Ratio Decidendi
The Court found that the applicants had raised serious issues for determination in the intended appeal, particularly regarding the validity of the charge due to alleged non-compliance with statutory requirements for execution and explanation before an advocate. The applicants had provided affidavit evidence which was uncontroverted by the respondent. The Court also found that the respondent's demands for varying sums raised a non-frivolous issue as to the ascertainment of the debt and the exercise of the power of sale. The Court concluded that if the injunction was not granted, the property would be sold and the appeal rendered nugatory. Accordingly, the application for injunction was...
Court Disposition
Application allowed; injunction granted pending appeal.
Orders
- An injunction is granted restraining the sale of the property pending the hearing and determination of the intended appeal.
- Costs of this application to be costs in the appeal.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE COURTS OF APPEAL
AT NAIROBI
CIVIL APPLIC 165 OF 2000 (73/2000 UR)
1. LALCHAND FULCHAND SHAH )
2. RAMBHABEN LALCHAND SHAH ).................................. APPLICANTS
AND
INVESTMENTS & MORTGAGES BANK LIMITED....... ...... RESPONDENT
(Application for relief in an intended appeal from theRuling of the High Court of Kenya at Nairobi (Mr. JusticeMbaluto) dated 18th February, 2000 In H.C.C.C NO. 2533 OF 1997)
***********************
RULING OF OWUOR J.A
I have had the advantage of reading in draft the rulings of my brothers AKIWUMI and SHAH, JJ.A. On my part, the application for an injunction under rule 5(2) (b) is irresistible.
Counsel for the applicant, Mr. Nowrojee, submitted that several serious issues will arise in the intended appeal. One of these arises out of the averment by the applicants in the superior court that the applicants had not executed the charge before the advocate named in the document or before any advocate, and that neither the said advocate nor any other advocate had explained the effect of the charge to them as required by the Transfer of Property Act of India as amended by the Indian Transfer of Property
Act (Amendment Act 1959). In support of this the first applicant had sworn an affidavit setting out these matters. There was no evidence to the contrary from the advocate concerned or the respondent. The onus of proof is upon the person who asserts. Upon placing their affidavit evidence before the superior court on the matter, it would appear to me that the applicant discharged this onus, prima facie. To my mind it is not a frivolous issue. It clearly raises the issue of the validity of the charge.
It was also argued by the applicants that the respondent had demanded several different sums of money. The charge was to secure sums up to KSh.30 million. The notifications of sale, both earlier and presently, state that the sum due was KSh.145 million. While the property had been valued at KSh.20 million, yet the charge was stated to cover advances in excess of that amount. The applicants' argument is that the demand must be an ascertainable amount and that the chargors were entitled to have the amount established before any power of sale could be exercised. The documents show these varying figures and whatever view the court ultimately takes on the matter in the intended appeal, to my mind this is not a frivolous issue.
As regards the issue of whether the appeal would be rendered nugatory if an injunction is not granted, I am satisfied that would be the inevitable consequence. The property would be sold and the applicants would have lost it forever.
2 For the reasons I have given above, I would allow the application and grant the injunction sought. I would order the costs of this application be costs in the appeal.
Dated and delivered at Nairobi this 7th day of July, 2000.
E. 0WU0R
……………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR