[2012] KEHC 2034 (KLR)

[2012] KEHC 2034 (KLR)

The court found that the applicant failed to demonstrate that he had serviced the loan or that the interest charged was in breach of the contract. The court held that the previous suit was not res judicata as it was withdrawn before determination on merits. However, the court accepted the applicant's contention that there was doubt as to whether the statutory notice and notification of sale were properly served, given discrepancies in the address and the identity of the person served. As the burden was on the respondent to prove proper service and this was not conclusively established, the court granted a temporary injunction restraining the respondent from exercising its statutory power...

Citation
[2012] KEHC 2034 (KLR)
Parties
Applicant: Patrick Karimi Wairagu t/a Thigi General Stores; Respondent: Barclays Bank of Kenya Limited; Respondent: Joseph G. Muturi t/a Muga Auctioneers & General Merchants; Applicant: Martin Wairagu Karimi (to be joined as the Administrator and legal representative of the Estate of Elizabeth Thigi Wanjau (Deceased)); Applicant: Daniel Ndege Ndiragu
Court
High Court
Court Station
High Court at Nakuru
Jurisdiction
Kenya
Judgment Date
18 September 2012
Case Number
Civil Case 93 of 2011
Procedural Posture
Civil Case / Ruling on Application for Temporary Injunction
Outcome
Temporary injunction granted until valid statutory notice and notification of sale are served.
Judges
SP Ouko
Legal Topics
Mortgage Enforcement, Statutory Notice Requirements, Injunctive Relief, Loan Default, Service of Process
Source Language
English
Banking and Finance Civil Procedure Mortgage Enforcement Statutory Notice Requirements Injunctive Relief Loan Default Service of Process

Case Brief

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Parties

Patrick Karimi Wairagu t/a Thigi General Stores

Applicant

Barclays Bank of Kenya Limited

Respondent

Joseph G. Muturi t/a Muga Auctioneers & General Merchants

Respondent

Martin Wairagu Karimi (to be joined as the Administrator and legal representative of the Estate of Elizabeth Thigi Wanjau (Deceased))

Applicant

Daniel Ndege Ndiragu

Applicant

Procedural Posture

Civil Case / Ruling on Application for Temporary Injunction

Legal Issues

  1. 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from exercising its statutory power of sale over the charged properties.
  2. 2 Whether the statutory notice and notification of sale were properly served on the applicant.
  3. 3 Whether the suit is res judicata due to previous proceedings in Nairobi Milimani HCCC No. 323 of 2006.

Ratio Decidendi

The court found that the applicant failed to demonstrate that he had serviced the loan or that the interest charged was in breach of the contract. The court held that the previous suit was not res judicata as it was withdrawn before determination on merits. However, the court accepted the applicant's contention that there was doubt as to whether the statutory notice and notification of sale were properly served, given discrepancies in the address and the identity of the person served. As the burden was on the respondent to prove proper service and this was not conclusively established, the court granted a temporary injunction restraining the respondent from exercising its statutory power...

Court Disposition

Temporary injunction granted until valid statutory notice and notification of sale are served.

Orders

  • Temporary injunction restraining the 1st respondent from selling, alienating, disposing of, transferring or otherwise dealing with the charged properties until valid statutory notice and notification of sale are served in accordance with the law.
  • Costs will be in the course.