[2001] KECA 201 (KLR)
The Court found that the applicant had been duly served with a valid statutory notice of sale, as conceded by her counsel. The Bank's statutory power of sale had arisen, and the property was sold at auction to the second respondent, who had paid the purchase price and executed the sale agreement. There was no...
Source-derived case information.
- Citation
- [2001] KECA 201 (KLR)
- Parties
- Applicant: Millicent Ngeso Ogila; Respondent: Kenya Commercial Bank Limited; Respondent: Dr. Peter W. Masinde
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 98 of 2001
- Procedural Posture
- Civil Application / Application for Injunction Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- AB Shah
- Legal Topics
- Statutory Power of Sale, Mortgage Enforcement, Injunctions, Auction Sales
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Millicent Ngeso Ogila
Applicant
Kenya Commercial Bank Limited
Respondent
Dr. Peter W. Masinde
Respondent
Procedural Posture
Civil Application / Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the applicant was served with a valid statutory notice of sale as required under the law.
- 2 Whether the applicant is entitled to an injunction restraining the transfer of the suit property to the purchaser after auction.
- 3 Whether there exists any arguable point to justify the grant of an injunction pending appeal.
Ratio Decidendi
The Court found that the applicant had been duly served with a valid statutory notice of sale, as conceded by her counsel. The Bank's statutory power of sale had arisen, and the property was sold at auction to the second respondent, who had paid the purchase price and executed the sale agreement. There was no arguable point or legal basis advanced by the applicant to justify the grant of an injunction restraining the transfer of the property. The application was therefore misconceived and dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to both respondents.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE COURT OF APPEAL AT NAIROBI CORAM: OMOLO, SHAH & BOSIRE, JJ.A CIVIL APPLICATION NO. NAI. 98 OF 2001 (59/2001 UR)
BETWEEN
MILLICENT NGESO OGILA....................................APPLICANT
AND
1. KENYA COMMERCIAL BANK LIMITED
2. DR. PETER W. MASINDE.............................RESPONDENTS
(An application for injunction from the Ruling and the Order of the High Court of Kenya at Nairobi (Ransley Commissioner of Assize Esq.) dated 8th March, 2001
in
H.C.C.C. NO. 276 OF 2001) ******************
RULING OF THE COURT
It is not in dispute that the applicant owes moneys to the first respondent (the Bank). It is also not in dispute that the Bank's power of sale in regard to the suit property, namely plot NO. NAIROBI BLOCK 82/345 of situate on Outer Ring Road, Doonholm Road has arisen. It is also admitted by Mr. Obera for the applicant that a valid notice of sale of the suit property had been served on the applicant by the Bank. It is also clear that the second respondent, Dr. Masinde, has paid to the Bank the sum he bid at the auction sale.
He has signed the requisite agreement for sale after the auction sale was cWoem pldeot endo.t see any arguable point advanced by Mr. Obura that would enable us to grant us to grant to the applicant the orders that he seeks from us namely restraining the Bank from transferring the suit property to the second respondent. The basis of the applicant's case in the superior court was that she did not receive the statutory notice for sale. That is not correct as now quite correctly conceded by Mr. Obura.
In all circumstances this applicant is misconceived. It is dismissed with costs to both respondents.
Dated and delivered at Nairobi 11th day of April, 2001.
R.S.C. OMOLO
……………………….
JUDGE OF APPEAL
A.B. SHAH
…………………………..
JUDGE OF APPEAL
S.E.O. BOSIRE
…………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR.