[2008] KEHC 2300 (KLR)
The court found that the plaintiff admitted to entering into the lending contract with the defendant and acknowledged his inability to service the loan as per the contract terms. The plaintiff failed to demonstrate a prima facie case with a probability of success or that damages would not be an adequate remedy. The...
Source-derived case information.
- Citation
- [2008] KEHC 2300 (KLR)
- Parties
- Plaintiff: Martin Nyaga Njagi; Defendant: Co-operative Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 4 of 2008
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- plaintiff's application for interlocutory injunction dismissed; ex parte order discharged; costs to defendant
- Legal Topics
- Interlocutory Injunctions, Ex Parte Orders, Loan Contracts, Contract Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Nyaga Njagi
Plaintiff
Co-operative Bank of Kenya
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendant pending the hearing of the suit.
- 2 Whether the ex parte order previously granted should be discharged.
- 3 Whether the plaintiff has satisfied the conditions for grant of an interlocutory injunction.
Ratio Decidendi
The court found that the plaintiff admitted to entering into the lending contract with the defendant and acknowledged his inability to service the loan as per the contract terms. The plaintiff failed to demonstrate a prima facie case with a probability of success or that damages would not be an adequate remedy. The court applied the principles from the Cassman Brown case and held that the conditions for granting an interlocutory injunction were not satisfied. Consequently, the court discharged the already expired ex parte order and dismissed the plaintiff's interlocutory application, awarding costs to the defendant.
Court Disposition
plaintiff's application for interlocutory injunction dismissed; ex parte order discharged; costs to defendant
Orders
- The ex parte order is discharged.
- The plaintiff's interlocutory application dated 21/1/2008 is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 4 of 2008
MARTIN NYAGA NJAGI…………………………………PLAINTIFF
VERSUS
CO-OPERATIVE BANK OF KENYA ..……………..DEFENDANT
RULING
The plaintiff application sought an exparte injunction under certificate of urgency. The exparte order pending hearing inter partes has long expired in view of Order 39 rule 3 (2) However for unknown reasons the application has fixed the matter for hearing inter partes on 17/9/2008. This promoted the Applicant defendant to seek orders to discharge the ex parte order as provided under order 39 Rule 4.
Upon considering the argument of counsel and upon residing the Application and annexures, I am not satisfied the conditions laid down in the case of Cassmen Brown namely that the Applicant for interlocutory injunction must satisfy the court that he has a case with good chance of success and that the case is such that an award in damages cannot adequately compensate the Application and in case of doubt the court will apply the rule of convenience. From the proceedings the plaintiff has admitted the lending contract and his inability to service the loan in compliance with the terms of contract the court cannot interfere with contract entered in freely.
For the above I find that an interlocutory injunction cannot issue in favour of the plaintiff. I therefore discharge Ex parte order already expired. I also dismiss the plaintiff’s interlocutory application dated 21/1/2008. All costs to the Respondent/Defendant.
It is so ordered.
Dated this 5th May, 2008.
J. N. KHAMINWA
JUDGE
5/5/2008
Khaminwa – Judge
Njue- Clerk
Mr. Maondo for Defendant/Applicant
Mr. Kenneth Githinji for Plaintiff/Respondent
Read in open court.
J. N. KHAMINWA
JUDGE