[2020] KEHC 7357 (KLR)
The court found that the applications for injunction were in respect of a new sale that was not the subject of the plaint, and therefore, there was no prima facie case with a probability of success. The only viable relief was the order for accounts as the previous sale had been overtaken by events. Consequently, the...
Source-derived case information.
- Citation
- [2020] KEHC 7357 (KLR)
- Parties
- Plaintiff: Manguo Development Company Limited; Plaintiff: Charles Karanja Kahahu; Plaintiff: Anne Wairimu Wanyeki; Plaintiff: David Kabubii Kuria; Plaintiff: Shadrack Thuku Kuria; Plaintiff: Elizabeth Wambui Kuria; Plaintiff: Pinnacle Projects Limited; Plaintiff: Winlouke Properties Limited; Defendant: I & M Bank Limited; Defendant: Westminister Commercial Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 6 of 2019
- Procedural Posture
- Civil Case / Ruling on Interlocutory Applications for Injunction and Accounts
- Outcome
- applications for injunction dismissed with costs; only order for accounts remains viable
- Judges
- DAS Majanja
- Legal Topics
- Statutory Power of Sale, Injunctive Relief, Accounting Orders, Mortgage Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Manguo Development Company Limited
Plaintiff
Charles Karanja Kahahu
Plaintiff
Anne Wairimu Wanyeki
Plaintiff
David Kabubii Kuria
Plaintiff
Shadrack Thuku Kuria
Plaintiff
Elizabeth Wambui Kuria
Plaintiff
Pinnacle Projects Limited
Plaintiff
Winlouke Properties Limited
Plaintiff
I & M Bank Limited
Defendant
Westminister Commercial Auctioneers
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Applications for Injunction and Accounts
Legal Issues
- 1 Whether the 1st defendant should be restrained from exercising its statutory power of sale over the suit property.
- 2 Whether the plaintiffs are entitled to an order for full accounts from the 1st defendant.
- 3 Whether the applications for injunction in respect of the new sale not pleaded in the plaint are maintainable.
Ratio Decidendi
The court found that the applications for injunction were in respect of a new sale that was not the subject of the plaint, and therefore, there was no prima facie case with a probability of success. The only viable relief was the order for accounts as the previous sale had been overtaken by events. Consequently, the applications for injunction were dismissed with costs.
Court Disposition
applications for injunction dismissed with costs; only order for accounts remains viable
Orders
- The Notices of Motion dated 19th January 2019, 5th February 2020 and 8th February 2020 are dismissed with costs.
- The only viable order is that in prayer (c) seeking full accounts.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CORAM: D. S. MAJANJA J.
CIVIL CASE NO. 6 OF 2019
BETWEEN
MANGUO DEVELOPMENT COMPANY LIMITED....................1ST PLAINTIFF
CHARLES KARANJA KAHAHU....................................................2ND PLAINTIFF
ANNE WAIRIMU WANYEKI...........................................................3RD PLAINTIFF
DAVID KABUBII KURIA..................................................................4TH PLAINTIFF
SHADRACK THUKU KURIA......................................................... 5TH PLAINTIFF
ELIZABETH WAMBUI KURIA..................................................... 6TH PLAINTIFF
PINNACLE PROJECTS LIMITED............................................... 7TH PLAINTIFF
WINLOUKE PROPERTIES LIMITED..........................................8TH PLAINTIFF
AND
I & M BANK LIMITED.................................................................1ST DEFENDANT
WESTMINISTER COMMERCIAL AUCTIONEERS..............2ND DEFENDANT
RULING
1. The question I have to decide today 27th February 2020 is whether to restrain the 1st defendant from selling the suit property pursuant to the exercise of its statutory power of sale. According to the plaint, four prayers are sought in relation to the suit property. Prayers (a) and (b) are in respect of a sale that was due in November 2018 and relates to a notification of sale dated 1st November 2018 which has now been overtaken by events. The only viable order is that in prayer (c) seeking full accounts.
2. The Notices of Motion dated 19th January 2019, 5th February 2020 and 8th February 2020 are all in respect of a new sale that is not the subject of the plaint hence there cannot be a prima facie case with a probability of success in respect of the sale scheduled tomorrow, 28th February 2020. In the circumstances, the said applications are dismissed with costs.
DATEDandDELIVEREDatNAIROBIthis27th day of FEBRUARY 2020.
D. S. MAJANJA
JUDGE
Court Assistant: Mr M. Onyango.