[2002] KEHC 550 (KLR)
The court found that there was insufficient material before it to warrant the grant of an injunction. The plaintiff failed to exhibit the charge documents and there was no evidence as to whether the statutory notice had been served or under which statute the charge was created. The court could not presume the...
Source-derived case information.
- Citation
- [2002] KEHC 550 (KLR)
- Parties
- Plaintiff: Peter Daudi Mbogori; Defendant: National Bank of Kenya Ltd.; Defendant: Garam Investment
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 350 of 2002
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Legal Topics
- Injunctive Relief, Statutory Notice Requirements, Guarantee Liability, Mortgage and Charge Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Daudi Mbogori
Plaintiff
National Bank of Kenya Ltd.
Defendant
Garam Investment
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendants from auctioning the charged property.
- 2 Whether the statutory notice of sale was properly served as required by law.
- 3 Whether the principal debtor must be called upon to pay before the guarantor is pursued.
Ratio Decidendi
The court found that there was insufficient material before it to warrant the grant of an injunction. The plaintiff failed to exhibit the charge documents and there was no evidence as to whether the statutory notice had been served or under which statute the charge was created. The court could not presume the applicable law or the terms of the charge and guarantee. In the absence of clear evidence of non-compliance with statutory requirements and with the remedy of damages available, the application for an interlocutory injunction was dismissed.
Court Disposition
application dismissed
Orders
- The application for injunction is dismissed with costs.
- The ex parte order previously granted is discharged.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 350 OF 2002
PETER DAUDI MBOGORI ………….……………....…….. PLAINTIFF
- Versus -
1. NATIONAL BANK OF KENYA LTD.
2. GARAM INVESTMENT ………………………….…. DEFENDANTS
R U L I N G
The Plaintiff filed a suit on 29/8/2002 and on the same day filed an application under certificate of urgency to restrain the Defendants from auctioning his property being Plot No. 2895/2/3 Timau in Meru area of the Republic of Kenya. The auction was stopped under a court order on exparte basis. The application came up for hearing inter partes today.
There are undisputed facts disclosed and admitted in the plaint. The Plaintiff has created a charge on the said property in favour of the first defendant a banking institution. There is a guarantee executed by him to secure a loan advanced to the Plaintiff’s company known as Mvita Beer and General distributors Limited. Furthermore that he saw a newspaper advertisement by second defendant which he has exhibited for the sale of the said property by auctioning on 30/8/2002. He objects to the proposed sale on the grounds that the principal debtor should be required to pay the loan first before the guarantor being called upon and that he has not received the Statutory Notice of Sale and furthermore he has not received 45 days notice from the auctioneer under the Auctioneers Act. A photocopy of Certificate of Title headed:
“Registration of Titles Certificate of Title L.R. 3424” in which there are several entries No.28 of which records “charge to National Bank of Kenya and entry No. 29 records variation of charge to the National Bank of Kenya Ltd.” Document of charge and further charge are not exhibited. In opposition the defendants represented by Mr. Songoro has filed the replying affidavit and grounds of opposition. He did not pursue his grounds Number 2. However on the other grounds he submitted that as the orders sought are for the period before the hearing of this application orders to last until the full hearing of the case cannot be granted as none is asked for in the application. Further he submitted that remedy for Applicant was in damages and not in equity of injunction.
In the replying affidavit the Defendants exhibited several correspondence but nowhere do they show that a statutory Notice has been issued. Again no charge document was exhibited. The court is left to speculate on the terms of the charge and agreement of guarantee if any between the parties. In his submission counsel for applicant asserted that statutory notice under section 74 Registered Land Act Cap 300 is not complied with and therefore the right of charge to sell has not accrued. The replying affidavit also refers to the charge as registered under Registered Land Act. There is no material land before me to show under which regulation the charge is made. The title being registered under the Registration of titles as indicated in the Plaintiff’s exhibit PDMI the court cannot presume that the charge is under any one of the two statutes.
I find that there is no sufficient material laid before the court to warrant an injunction being issued. The application is dismissed with costs.
The exparte order granted is hereby discharged.
Dated this 18th day of December, 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Mr. Sangoro for Respondent
N/A for Kabuki