[2023] KEHC 25456 (KLR)
The High Court declined to grant an interim stay of sale because the Court of Appeal had already determined that the 1st defendant bank was at liberty to proceed with a new public auction of the charged property without the need to serve new statutory notices. The High Court found that granting a stay would amount...
Source-derived case information.
- Citation
- [2023] KEHC 25456 (KLR)
- Parties
- Plaintiff: James Michael Mc Tough; Plaintiff: Patricia Ann Mc Tough; Defendant: National Bank Of Kenya Limited; Defendant: Collinet Auctioneers
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Commercial Case E003 of 2023
- Procedural Posture
- Commercial Case / Interlocutory Application for Interim Stay of Sale
- Outcome
- Application for interim stay of sale declined.
- Judges
- RE Aburili
- Legal Topics
- Interim Injunctions, Mortgage Enforcement, Public Auction, Stay of Sale
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Michael Mc Tough
Plaintiff
Patricia Ann Mc Tough
Plaintiff
National Bank Of Kenya Limited
Defendant
Collinet Auctioneers
Defendant
Procedural Posture
Commercial Case / Interlocutory Application for Interim Stay of Sale
Legal Issues
- 1 Whether the court should grant an interim stay of sale of the plaintiffs' property scheduled for public auction.
- 2 Whether the High Court can grant a stay order where the Court of Appeal has already determined the issue of sale of the charged property.
Ratio Decidendi
The High Court declined to grant an interim stay of sale because the Court of Appeal had already determined that the 1st defendant bank was at liberty to proceed with a new public auction of the charged property without the need to serve new statutory notices. The High Court found that granting a stay would amount to sitting on appeal of the Court of Appeal's orders, which is impermissible. The court further noted that if the applicants had new and compelling evidence, their recourse was to approach the Court of Appeal for review, not to seek a stay from the High Court. There was no complaint regarding the advertisement of the sale, and thus no basis for intervention at this stage.
Court Disposition
Application for interim stay of sale declined.
Orders
- Interim stay of sale is declined.
- Respondent to file Replying affidavit within ten (10) days.
Full Case Text
Judgment text and source record
28 paragraphs
Mc Tough & another v National Bank of Kenya Limited & another (Commercial Case E003 of 2023) [2023] KEHC 25456 (KLR) (14 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25456 (KLR)
Republic of Kenya
In the High Court at Kisumu
Commercial Case E003 of 2023
RE Aburili, J
November 14, 2023
Between
James Michael Mc Tough
1st Plaintiff
Patricia Ann Mc Tough
2nd Plaintiff
and
National Bank Of Kenya Limited
1st Defendant
Collinet Auctioneers
2nd Defendant
Ruling
1. This short ruling determines the question of whether this court should grant any interim stay of sale of the Plaintiff’s property scheduled for sale on 15th November 2023 as advertised by the 1st Respondent.
2. I have heard the brief arguments by Mr. Bruce Odeny Advocate for the Applicant and the response by counsel for the Respondents, Mr. Tugee.
3. I have also perused the pleadings and the grounds of opposition and the annexed Ruling from the Court of Appeal videCivil Application No. E095 of 2023. I have particularly read paragraphs 31, 34 and 35 of the Court of Appeal Ruling dated 25th October 2023. It is clear to me that the Court of Appeal rendered itself on whether the sale of the charged property should go on or not and stated that the 1st Respondent Bank was at liberty to proceed with a new public auction following an advertisement of the sale without the need to serve new Statutory notices on the Applicants.
4. If the Applicants now have new and compelling evidence or material, nothing prevents them to approach the Court of Appeal for review of that Ruling or Orders.
5. There is no complaint regarding the advertisement and therefore this court would be sitting on appeal of the Court of Appeal orders if it was to grant another stay on account of the proposed amendments.
6. Accordingly, I decline to grant any stay orders and direct that the Respondent files the Replying affidavit within ten (10) days of today.
7. The Applicant is at liberty to file and serve a further affidavit within ten (10) days of service together with written submissions upon which the Respondents have ten (10) days to file and serve written submissions.
8. Mention before High Court 2 on 18th December 2023 to fix a Ruling date on the application dated 8th November 2023.
9. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 14TH DAY OF NOVEMBER, 2023R. E. ABURILIJUDGE