[2010] KEHC 2237 (KLR)
The court found that the 1st defendant's demand for Kshs.647,209.20 was a typographical error and that the correct sum of Kshs.323,992.35 was reflected in the statutory notice and auctioneer's demand letter. Since the error was isolated and corrected, and the plaintiff was in clear default of repayment, there was no...
Source-derived case information.
- Citation
- [2010] KEHC 2237 (KLR)
- Parties
- Plaintiff: Osman Saleh Abdalla; Defendant: Barclays Bank of Kenya; Defendant: Garam Investment
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 346 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Legal Topics
- Injunctions, Mortgage Enforcement, Default on Loan, Statutory Notice Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Osman Saleh Abdalla
Plaintiff
Barclays Bank of Kenya
Defendant
Garam Investment
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a permanent injunction restraining the sale of the charged property by the defendants.
- 2 Whether the 1st defendant's demand for Kshs.647,209.20 instead of Kshs.323,992.35 invalidates the statutory notice or the sale process.
Ratio Decidendi
The court found that the 1st defendant's demand for Kshs.647,209.20 was a typographical error and that the correct sum of Kshs.323,992.35 was reflected in the statutory notice and auctioneer's demand letter. Since the error was isolated and corrected, and the plaintiff was in clear default of repayment, there was no basis for granting an injunction. The plaintiff failed to demonstrate any substantive irregularity or breach of statutory requirements by the defendants. Accordingly, the application for an injunction lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The plaintiff's application for injunction is dismissed with costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Case 346 of 2009
OSMAN SALEH ABDALLA............................................PLAINTIFF
VERSUS
BARCLAYS BANK OF KENYA..........................1ST DEFENDANT
GARAM INVESTMENT......................................2ND DEFENDANT
RULING
On 5th November 1999 the plaintiff charged his property situate in Nakuru District and known as Title No. Nakuru/Rare/Gichogo/72 to the 1st defendant to secure a sum of Kshs.200,000/- advanced to him. Upon default in the repayment the 1st defendant served him with notice and instructed the 2nd defendant to sell the land to recover the balance of Kshs.323,992. 35outstanding as at 13th June 2009. On 15th December 2009 the plaintiff filed this suit and sought a permanent injunction to restrain the sale on the grounds that the 1st defendant has applied excessive interest to the amount due and is demanding Kshs.323,992. 35 and Kshs.647,209. 20 as the amounts outstanding. Contemporaneous with the filing of the suit he applied for an injunction under Order 39 Rules 1, 2, 3 and 9 of the Civil Procedure Rules on the same grounds.
In his replying affidavit, Allan Onyango, a Legal Officer with the 1st defendant averred that the sum of Kshs.647,209. 20 was a typographical error. The correct sum is Kshs.323,992. 35. He further stated that the defendant is clearly in default and his application should be dismissed with costs.
Having considered the matter I find that the 1st defendant made a typographical error in demanding a sum of Kshs.647,209. 20 instead of Kshs.323,992. 35. That error was in any case only in one of the 1st defendant’s letters. The statutory notice and the auctioneer’s demand letter had the correct figure. Other than that error which has since been corrected, the plaintiff is clearly in default in the repayment of the amount due. In the circumstances I find no merit in the application and I accordingly dismiss it with costs.
DATED and DELIVERED this 2nd day of June, 2010.
D. K. MARAGA
JUDGE.