[2020] KEHC 1222 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CIVIL CASE NO 14 OF 2019

SALLY CHEPTOO BWAMBOK...............................1ST PLAINTIFF/1ST APPLICANT

CHRISTINE CHEMELI TAUKEI...........................2ND PLAINTIFF/2ND APPLICANT

(SUING AS THE ADMINSTRATORS OF THE ESTATE OF Henry Kipkogei Bomet)

VERSUS

KENYA COMMERCIAL BANK LTD................1ST DEFENDANT/1st RESPONDENT

EDWIN KIPLIMO TOO....................................2ND DEFENDANT/2ND RESPONDENT

RULING

The case for the Applicants

1. Pursuant to the provisions of Order 40 Rule, 2 and 3 of the Civil Procedure Rules, sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act (Cap 21) Laws of Kenya and all enabling provisions of the law, the applicants sought the following orders.

1) spent

2) a temporary order of injunction restraining the 1st defendant/respondent, their servants, or agents or anyone claiming through them from advertising, offering for sale by way of public auction, private treaty, or in whatsoever manner dealing with the suit property, Kaplamai/Sirenda Block 2/Ngonyek/550 pending the hearing and determination of this suit or until further orders from this court.

2. The application is supported by eight grounds that are set out on the face of the notice of motion with the major grounds being the following. First, the suit property is registered in the name of Henry Kipkogei Bomet, who died on 20/April 2017.

Second, the 2nd Respondent fraudulently caused the suit property to be charged to the 1st Respondent long after the deceased had died.

Third, the charge was fraudulently registered in July 2018, long after the death of the deceased.

Fourth, the Applicants were not aware of the said charge until the 1st Applicant was served with a statutory notice of sale under section 90 (1), (2) and (3e) of the Land Act.

Fifth, the notice has since lapsed and there is impending danger of a sale of the suit property.

Sixth, the charge is illegal and is meant to deny the beneficiaries of the estate of their rightful shares.

Seventh, the balance of convenience is in favour of the Applicants.

3. The application is supported by a 15 paragraphs supporting affidavit of the 1st Applicant, with the major averments being the following. First, the deponent has averred that herself and the co-applicant are the co-administrators of the estate of their deceased husband, who died on 20th July 2017. The deceased left behind several properties among them Kaplamai//Sirenda Block 2/Ngonyek/550.

4. Furthermore, the 1st Applicant deposed that the 2nd Respondent forged the 1st Plaintiff’s signature and added his name as a guarantor of the said loan facility long after the deceased had died.

5. The consent given by the Land Control Board is also a forgery since the application was made to the board after the death of the deceased.

6. The remaining averments are a replica of the grounds set out in the notice of motion.

The case for the 1st Respondent

7. The 1st Respondent through its Credit manager/Administrator (Paul Bii) has deposed to a 23 paragraphs replying affidavit in opposition to the application, with the major grounds being the following.

8. First, the deponent has deposed that the Applicants’ applications is full of falsehoods and misrepresentations. Second, the 2nd Deponent applied for and obtained a loan from the 1st Defendant, which loan was secured by a charge over the suit property in the name of Henry Kipkogei Bomet. The 1st Defendant entered into a binding agreement with the 2nd Defendant/Respondent which was guaranteed by the Henry Kipkogei Bomet with the full knowledge of the 1st Plaintiff/Applicant, who issued her spousal consent to charge the suit property.

9. The 1st Defendant carried out all the due diligent in the transaction between itself and the 2nd Defendant/Respondent as required by law. The 1st Defendant is not privy to any illegal transactions and had no notice of the alleged fraud and the charge is therefore valid.

10. The Defendant had no capacity of knowing any alleged fraud. The loan account is currently in arrears and this court should not be hoodwinked into aiding these individuals who are hell bent on escaping their contractual obligations.

11. The sale is not imminent as the 1st Defendant has only issued the statutory notice and there is no imminent danger to the suit property.

12. The Deponent has deposed based on the advice of its advocate that the applicants will not suffer irreparable damage as the suit property had been pledged as security and the Applicants were all along aware that in the event default sale would ensue.

Issues for Determination

13. I have considered the affidavits of both parties and their submissions. I find that the following are the issues for determination.

1) Whether the Applicants have established a prima facie case for the grant of a temporary order of injunction.

2) who bears the costs of this application?

Issue 1

14. It is settled law that an Applicant for the equitable relief of a temporary injunction has to demonstrate the following as set out in the famous case of Giella v Cassman Brown [1973] EA 358. First that the Applicant has a prima facie case. 2) That he will suffer irreparable damage unless the order is granted. 3) In the alternative to the foregoing, he has to show that the balance of convenience is in his favour.

Issue 1

15. I find from the affidavit evidence of the parties that the 1st Defendant/Respondent had issued and served its statutory notice of sale upon the Applicants. In the circumstances, I find that the Plaintiffs/Applicants have established a prima facie case for the grant of a temporary order of an injunction to preserve the status quo pending the hearing and determination of this suit.

16. I further find that unless a temporary order of an injunction is issued the applicants might suffer irreparable damage.

Finally, I find that the balance of convenience is in favour of the Plaintiffs/Applicants.

Issue 2

17. Costs of this application will be costs in cause.

18. I therefore allow the application with the result that costs will be costs in cause.

Ruling signed, dated and delivered at Kitale this 1st day of December, 2020 in the absence of all parties but in the presence

Court Assistant – Kirong and Chemisop.

____________________

J. M. BWONWONG’A.

J U D G E

1/12/2020