[2020] KEHC 9767 (KLR)
The court declined to grant the bank's application for possession and enforcement of the statutory power of sale due to the prevailing COVID-19 pandemic and the associated public health directives, including movement restrictions and social distancing. The court found that granting the orders would risk contravening...
Source-derived case information.
- Citation
- [2020] KEHC 9767 (KLR)
- Parties
- Plaintiff: Patrick Githinji Ndichu; Plaintiff: Florence Waitherero Maina; Plaintiff: Solex Building Contractors Limited; Defendant: Equity Bank (K) Limited; Defendant: Antique Auctions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 37 of 2018
- Procedural Posture
- Civil Suit / Ruling on Application for Possession and Enforcement of Statutory Power of Sale
- Outcome
- application dismissed with liberty to reapply; costs in the cause
- Judges
- MM Kasango
- Legal Topics
- Statutory Power of Sale, Legal Charge Enforcement, Covid 19 Emergency Measures, Vacant Possession, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Githinji Ndichu
Plaintiff
Florence Waitherero Maina
Plaintiff
Solex Building Contractors Limited
Plaintiff
Equity Bank (K) Limited
Defendant
Antique Auctions
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Possession and Enforcement of Statutory Power of Sale
Legal Issues
- 1 Whether the bank is entitled to orders for possession of the charged property during the COVID-19 pandemic period.
- 2 Whether enforcement of the statutory power of sale should be stayed due to public health directives.
- 3 Whether the plaintiffs' failure to give access to the property justifies granting the bank's application.
Ratio Decidendi
The court declined to grant the bank's application for possession and enforcement of the statutory power of sale due to the prevailing COVID-19 pandemic and the associated public health directives, including movement restrictions and social distancing. The court found that granting the orders would risk contravening these directives and potentially endanger public health, especially as the property in question is a matrimonial home. The court held that while the bank's statutory rights were not extinguished, their enforcement must be temporarily suspended in light of the exceptional circumstances. The bank was granted liberty to renew its application once the pandemic situation...
Court Disposition
application dismissed with liberty to reapply; costs in the cause
Orders
- The application dated 10th December 2019 is declined.
- The 1st defendant is granted leave to seek similar orders once the COVID-19 pandemic threat is over.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 37 OF 2018
PATRICK GITHINJI NDICHU...................................1ST PLAINTIFF
FLORENCE WAITHERERO MAINA.......................2ND PLAINTIFF
SOLEX BUILDING CONTRACTORS LIMITED....3RD PLAINTIFF
- VERSUS -
EQUITY BANK (K) LIMITED..............................1ST DEFENDANT
ANTIQUE AUCTIONS.........................................2ND DEFENDANT
RULING
1. It is not denied that Solex Building Contractors Limited, the 3rd plaintiff, was granted financial facility by Equity Bank (Kenya) Limited, the 1st defendant (the Bank). That facility was secured by a legal charge over the property title number 13868/11, which property is registered in the names of Patrick Githinji Ndichu, the 1st plaintiff and Florence Waitherero Maina, the 2nd plaintiff. By a Ruling of this court dated 1st October 2019 this court declined to grant an interlocutory injunction, to the 1st and 2nd plaintiff, to restrain the Bank from selling the charged property in exercise of its statutory power of sale.
2. The application, which is the subject of this Ruling is filed by the Bank and is dated 10th December 2019. The Banks seeks orders that it be allowed, together with its servants or agents “to peaceably and by use of reasonable force enter and/or gain possession of the charged property and the premises erected” on the charged property and premises thereon. In the alternative the Bank seeks an order that the plaintiffs do give, the Bank’s servants or agents, and yield vacant possession of the charged property and premises thereon. In order to execute those orders, the Bank further seeks the officer in charge of station, at Karen Police Station, be directed to supervise the enforcement thereof.
3. The application is supported by the affidavit of Peter Karuma the Banks Credit Manager at its Community Branch. He deponed that the plaintiffs had neglected refused and/or failed to honour their financial obligation to the Bank and that accordingly the Bank’s Statutory Power of Sale had arisen. The Bank has issued the requisite legal Notices. That the Bank’s attempt to exercise its power of sale of the charged property has been frustrated by the plaintiffs’ failure to give prospective buyers unimpeded access to the charged property and hence why the Bank seeks possession of the charged property.
ANALYSIS
4. The Bank correctly stated that the plaintiffs have admitted that the 3rd plaintiff was afforded from time to time banking facilities by the Bank. Those facilities were secured by the legal charge over the charged property.
5. It needs to be appreciated that the application is before me when the country, and indeed the world, is facing the COVID-19 pandemic. During this time the Ministry of Health has given various directives with a view to combating the pandemic which directives include social distancing. Social distancing has involved the closure of schools, businesses, cancellation of events and movement restrictions, amongst others. The government has also restricted the movement of people in and out of certain parts of the country, Nairobi County being one such places. The charged property is within Nairobi County.
6. It is also common knowledge that COVID -19 is primarily transmitted through droplets or direct contact of infected persons or by contact with contaminated objects.
7. It is in view of the above, and because of the risks likely to entail with several people gaining access of the charged property, which is the matrimonial home of the 1st and 2nd plaintiff, that I will decline to grant the orders sought. The orders sought may go contrary to the ministry of health directives. Although I will decline to grant the orders the Bank will have liberty, once the situation relating to the pandemic normalises, to seek appropriate orders.
8. In the end, I decline to grant the orders sought in the Notice of Motion dated 10th December 2019. The 1st defendant is however granted leave to seek similar orders once the threat of COVID-19 pandemic are over. The costs of the Notice of Motion shall be in the cause.
DATED, SIGNED and DELIVERED at NAIROBI this11thday of JUNE2020.
MARY KASANGO
JUDGE
ORDER
In view of the measures restricting court operations due to the COVID-19 pandemic and in light of the Gazette Notice No 3137 of 17th April 2020 and further parties having been notified of the virtual delivery of this decision, this decision is hereby virtually delivered this 11th day of June, 2020.
MARY KASANGO
JUDGE