[2023] KEELC 19912 (KLR)

Mungania v Centenary Savings and Credit Cooperative Society (Environment and Land Appeal E036 of 2023) [2023] KEELC 19912 (KLR) (20 September 2023) (Ruling)

Neutral citation: [2023] KEELC 19912 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment and Land Appeal E036 of 2023

CK Nzili, J

September 20, 2023

Between

George Gitonga Mungania

Appellant

and

Centenary Savings and Credit Cooperative Society

Respondent

Ruling

1. By an application dated 15. 5.2023, the court is asked to issue a temporary injunction barring and restraining the respondent from advertising for sale, selling by public auction or private treaty, disposing off or completing any conveyance or transfer, leasing, letting, charging or in any way whatsoever, interfering with the appellant's ownership of LR No. Ntima/Ntakira/6126, pending hearing and determination of the appeal. The application is supported by the grounds on its face and the supporting affidavit of George Gitonga Mungania sworn on 15. 5.2023. The appellant aver that he is the owner of LR No. Ntima/Ntakira/6126, against which he took a loan that he has been servicing but has been put under public auction in an irregular, invalid, and illegal manner for non-compliance with Sections 90 and 96 (2) of the Land Act. The appellant avers that his application for an injunction at the trial court was dismissed on 17. 4.2023; hence, unless this court grants the orders sought, he stands to suffer grave loss and damage, yet his appeal has a high chance of success, is not frivolous and the subject matter of appeal may dissipate. The application is supported by documents namely; the official search for the suit land, copies of deposits and bank statements, advertisement notice in the daily newspaper, and a ruling, the subject matter of this appeal, all marked as annexures GGM 1-4, respectively.

2. In opposition to this application, Diana Mukami, the respondent's credit manager, has sworn an affidavit dated 26. 5.2023. It is averred that the appellant took a loan of Kshs.4,000,000/= on 4. 4.2018, payable in 60 monthly installments of Kshs.97,166. 70. The respondent avers that the appellant offered a title deed to the suit land as a commodity for sale in default of the repayments aforesaid.

3. The respondent also avers that the appellant fell short of meeting the monthly loan repayments, as shown in the deposit slips and bank statements. The last repayment being on 14. 2.2022. Therefore, it was averred that the bank rightfully exercised the statutory notices under Section 90 of the Land Act. Further, the respondent avers that the appellant has not explained how he came into possession of the annexed notices despite denying the issuance; hence, no prejudice would be suffered, which damages cannot compensate. Lastly, the respondent avers that the appellant has not met the threshold for the grant of orders sought, more so when the value of the suit property was likely to be outstripped by the loan.

4. A party seeking a temporary injunction pending appeal under Order 42 Rule 6 (6) of the Civil Procedure Rules has to establish that he has an arguable appeal, that is not frivolous and that the appeal would be rendered superfluous or nugatory unless the orders sought were granted.

5. While expounding the discretion of the court, while the court in Madhupaper International Limited vs Kerr(1985) KLR and Stanley Kangethe Kinyanjui vs. Tony Keter (2013) eKLR held that an arguable appeal must not succeed but raise issues that require the court's consideration. Further, inKitho Civil and Engineering Co. Ltd vs NBK & another (Civil application E706 of 2021) (2023) KECA 387 (KLR) 31st March 2023 (Ruling), the court cited with approval Multi-Media University & another vs Prof. Gitile N. Naituli (2014) eKLR, that the discretion was broad and unfettered and each case depends on its facts and circumstances, more so if what was sought to be stayed was reversible.

6. In Kitho (supra), the court cited with approval Joseph Okoth Wandi vs NBK (2006) eKLR, that a court will not restrain a mortgage from exercising its statutory power of sale because the amount due was in dispute or because the mortgagor objections to how the sale was being made. Further, the court cited with approval African Safari Club Ltd vs. Safe Rental Ltd(2010) eKLR, that the court must act fairly and justly to put the hardships of both parties on a scale and Esso (K) Ltd vs Mark Makwata Okiya (1992) eKLR and John Nduati Kariuki t/a Jonester Merchants vs NBK (2006) 1 EA 96, that offering securities for sale ensures that the mortgagor cannot be heard to say the bank was incapable of refunding the sums since the security was unique or special.

7. The question before this court is whether what is before it meets the above threshold. The appellant is appealing against a ruling by the trial court that denied him a temporary injunction. In this application, the pleadings at the trial court have not been attached. By a memorandum of appeal dated 15. 5.2023, the appellant claims that there was an injustice for a requisite statutory notice was not served and that the trial court relied on evidence not produced when it dismissed the application for the injunction. The appellant also says that the trial court determined issues outside the scope of the suit, took into account matters it ought not to have considered, and therefore, there was a miscarriage of justice.

8. It is trite law that the discretion to grant or not to grant a temporary injunction under Order 40 of the Civil Procedure Rules lies with the court and has to be exercised on the known grounds as set in the Giela vs. Cassman Brown (1973) E. A and followed up in Nguruman Ltd vs. Joel Nielsen Bonde & 2 others (2013) eKLR and Mrao vs. First American Bank (2003) eKLR.

9. In this appeal, the onus is on the appellant to demonstrate an arguable appeal in terms of showing that there was a miscarriage of justice by the trial court. It is not enough to allege a miscarriage of justice without demonstrating how this occurred. The appellant has not disputed that there was a default in servicing the loan, the last installment having been made on 14. 2.2022. If there was a default, the appellant knew the consequences, which he willingly accepted when he offered the suit land as a commodity for sale. An explanation was not provided before this court that the appellant undertook some remedial action after the default in the first instance, before and after the statutory notice was issued.

10. The appellant has not demonstrated his willingness to provide any security or guarantee to ameliorate the status of the escalating loan arrears and interest as a condition precedent for granting the orders sought. The court, over and above considering whether the appeal is arguable, must also look into whether the may be rendered nugatory if this court were to decline to grant the orders sought.

11. No evidence has been shown that there is an impending statutory power of sale since 17. 4.2022. The appellant has not stated whether he is occupying the suit land, its value, status, and how he stands to suffer damages. It is not enough to allege that the damages without demonstrating the same as indicated by the court in Nguruman Ltd vs Bonde (supra)

12. The upshot is I find the application lacking merits. The same is dismissed with costs.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 20THDAY OF SEPTEMBER 2023. In presence ofC.A Kananu/MukamiMr. Muthomi for the applicantMiss Gachohi for the respondentHON. CK NZILIELC JUDGE