[2009] KEHC 3218 (KLR)
The court found that the plaintiff had established a prima facie case with a probability of success because the property advertised for sale was misdescribed and did not match the plaintiff's actual property. The court held that if the plaintiff's property were sold pursuant to the erroneous advertisement, it would...
Source-derived case information.
- Citation
- [2009] KEHC 3218 (KLR)
- Parties
- Plaintiff: Nyali Construction & Electrical Service Limited; Defendant: Barclays Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 315 of 2007
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed
- Legal Topics
- Interlocutory Injunctions, Misdescription of Property, Advertisement of Sale, Security for Loans
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyali Construction & Electrical Service Limited
Plaintiff
Barclays Bank of Kenya Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the advertisement for sale misdescribed the plaintiff's property.
- 2 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendant from dealing with the property based on the impugned advertisement.
- 3 Whether damages would be an adequate remedy for the plaintiff if the property is sold irregularly.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case with a probability of success because the property advertised for sale was misdescribed and did not match the plaintiff's actual property. The court held that if the plaintiff's property were sold pursuant to the erroneous advertisement, it would be irregular and unlawful. The court further held that the defendant's ability to pay damages did not justify allowing it to flout the law, and that the balance of convenience favoured granting the injunction since the defendant still held the property as security and there was no evidence of deterioration in value. Consequently, the court allowed the application for an...
Court Disposition
application allowed
Orders
- The defendant is restrained from further processing of the sale, transferring, leasing, charging, or in any way dealing with the plaintiff's property on the basis of the advertisement appearing in the Sunday Nation of 12th July 2009.
- The order is granted on condition that the applicant files an undertaking as to damages within five days.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 315 of 2007
NYALI CONSTRUCTION & ELECTRICAL SERVICE LIMITED……..PLAINTIFF
VERSUS
BARCLAYS BANK OF KENYA LTD…….......................................……DEFENDANT
RULING
I have heard counsel fully on this application. The plaintiff has alleged that the property advertised for sale although stated to belong to the plaintiff by views is in fact not that of the plaintiff.
I have also seen the advert. It is dated 12th July 2009 and states that the intended sale would take place on 27th July 2008 now past.
The property advertised is described as Mombasa/Block/28. The description differs from the plaintiff’s property which is Mombasa Block 1/28.
Prima facie therefore, there is a clear error with regard to the date of the intended sale and a clear misdescription of the suit property. It cannot be gainsaid that if the plaintiff’s property is sold pursuant to the said advert it would obviously be irregular.
In the premises, I find and hold that the plaintiff has established a prima facie case with a probability of success at the trial.
With regard to the 2nd condition for the grant of an interlocutory injunction, I am persuaded that although there is no doubt that the plaintiff’s property has a value. Yet the plaintiff is entitled to lose the property in a lawful manner. The defendant cannot be allowed to flout the Law merely because it has the ability to pay whatever damages that the court will award.
On the balance of convenience, I am persuaded that the same tilts in favour of granting the injunction, the defendant still holds the suit property as security. There is no allegation that it is deteriorating in value since no replying affidavit was filed.
In the end, I am satisfied that the orders sought by the plaintiff are deserved. Accordingly the application is allowed in terms of paragraph 3 thereof. In the event that the auction has already been held I order that the defendant be restrained from further processing of the sale or transferring or leasing, charging of in any way whatsoever and howsoever from dealing with the plaintiff’s property on the basis of the advertisement appearing in the Sunday Nation of 12th July 2009.
This order is granted on the condition that the applicant shall file an undertaking as to damages within the next five (5) days.
Costs shall be in the cause.
Orders accordingly.
F. AZANGALALA
JUDGE
27TH JULY 2009
Gikandi:
I pray for a certified copy of proceedings and ruling.
Court:
A certified copy of the proceedings and ruling to be furnished to counsel upon payment of the requisite court fees.
F. AZANGALALA
JUDGE
27TH JULY 2009