[2012] KEHC 1140 (KLR)
The court found that the goods in question had already been sold by the defendant with the permission of the Gichugu Law Courts in Civil Case No. 58/2009. Since the goods no longer existed, granting an injunction or ordering their return would be futile. The court also noted that the plaintiff failed to disclose the...
Source-derived case information.
- Citation
- [2012] KEHC 1140 (KLR)
- Parties
- Plaintiff: Rosemary Wambui Miano; Defendant: Kenya Commercial Bank
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 39 of 2011
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application dismissed with costs; suit transferred to SPM Kerugoya subject to withdrawal of Gichugu Civil Case No. 58/2009.
- Judges
- HI Ong'udi
- Legal Topics
- Injunctions, Loan Default, Attachment and Sale of Goods, Transfer of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary Wambui Miano
Plaintiff
Kenya Commercial Bank
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an injunction restraining the defendant from disposing of attached goods.
- 2 Whether the goods in question have already been disposed of, rendering the injunction application moot.
- 3 Whether the matter should be transferred to the SPM Kerugoya for hearing and determination.
Ratio Decidendi
The court found that the goods in question had already been sold by the defendant with the permission of the Gichugu Law Courts in Civil Case No. 58/2009. Since the goods no longer existed, granting an injunction or ordering their return would be futile. The court also noted that the plaintiff failed to disclose the status of the earlier suit, suggesting it was still pending. The court held that the issues raised could only be addressed at a full hearing and that the application for an injunction lacked merit. Furthermore, given the enhanced jurisdiction of the Magistrate's Courts, the matter was suitable for transfer to the SPM Kerugoya, subject to confirmation that the earlier suit had...
Court Disposition
Application dismissed with costs; suit transferred to SPM Kerugoya subject to withdrawal of Gichugu Civil Case No. 58/2009.
Orders
- The application for injunction is dismissed with costs to the defendant.
- The suit is transferred to the SPM Kerugoya for hearing and determination.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Embu
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ROSEMARY WAMBUI MIANO…..................…….........PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK....................................DEFENDANT
R U L I N G
The Plaintiff/Applicant filed the Notice of Motion dated 23/3/2011 under Order 40 Rule 1(a) and 2 of the Civil Procedure Rules and Section 3 of the Civil Procedure Act for the following order. An injunction to issue against the Defendant from disposing the properties removed from the plaintiff's premises by the Defendant and or his agents. In the alternative the said goods be released.
The application is supported by the grounds on the face of the application plus the supporting affidavit of the Plaintiff/Applicant. In it she says she took a loan facility from the Defendant and was not up to date with her repayment. She however kept the Defendant posted of all that she was doing. She obtained an injunction vide Civil Case No. 58/2009 Gichugu Court stopping the defendant from disposing of her property. (RWM3) This was on 29/9/2009 (RWM5) authorizing them to sell the Applicant's property.
The Defendant/Respondent through its Kerugoya Credit Officer filed a long replying affidavit explaining what has been happening in this matter. In paragraph 18 he says the attached items were sold and raised Shs.15,541 (CNG11). The counsels agreed to dispose of the application by way of written submissions. Ms. Wangari for Applicant relying on the case of MRAO LTD VS FIRST AMERICAN BANK OF KENYA LTD & 2 OTHERS [2003] KLR 125submitted that the Applicant had established a prima facie case. Mr. Kibicho again submitted citing what has been happening in this case.
I have considered the averments in the affidavits, annextures and the submissions. The Applicant wants this Court to restrain the Defendant/Respondent from disposing of her properties attached or to order for release of the goods to her. The Defendant/Respondent states that the list provided by the Applicant is too exaggerated.
I have with interest noted that the Plaintiff/Applicant had filed a similar civil suit No. 58/2009 at Gichugu Law Courts where she obtained some restraining order. (RWM3). In the same file the Court authorized the Defendant/Respondent to dispose of the attached property. She does not however say what has become of that suit. She does not mention anything about it in her plaint or verifying affidavit. The chances are that it is still pending.
From the facts before this Court the Defendant/Respondent with the permission of the Court at Gichugu sold the goods that it had attached. The Defendant/Respondent has also given an account of the proceeds. The Plaintiff/Applicant may agree with it or not but that is not for now. It would therefore be an exercise in futility for this Court to issue any restraining orders to dispose as the goods have been disposed off.
There is nothing to be ordered returned to the Plaintiff/Applicant. The other issues raised by parties can only be dealt with vide a full hearing. And that being the case I do not find it necessary to get into the areas of deciding whether the principles for granting an injunction have been met. I therefore find no merit in the application which I dismiss with costs.
I also find that with the enhanced jurisdiction for the Magistrate's Courts, this matter can very well be handled by the SPM Kerugoya from where this matter arises. I therefore order that the matter be transfered to the SPM Kerugoya for hearing and determination.
However, before it proceeds before the SPM Kerugoya there must be evidence in writing to that Court to the effect that the Gichugu Civil Case No. 58/2009 has been withdrawn.
DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH OF NOVEMBER 2012.
H.I. ONG'UDI
JUDGE
In the presence of:-
Ms. Nyaga for Ms. Wangari for Plaintiff/Applicant
Ms. Muthike for Mwaura for Defendant
Njue CC