[2002] KEHC 738 (KLR)
The court found that the applicant's evidence, being unchallenged and uncontested due to the absence of a defence or replying affidavit from the defendant, must be accepted as the correct factual situation. The issues raised by the applicant went beyond mere disputes over accounts and included allegations of breach...
Source-derived case information.
- Citation
- [2002] KEHC 738 (KLR)
- Parties
- Plaintiff: Samuel Gituruku Kihiko; Defendant: Housing Finance Company of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1842 of 2001
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- injunction granted
- Judges
- CA Ombija
- Legal Topics
- Injunctive Relief, Mortgage Disputes, Interest Rate Challenges, Breach of Charge Terms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Gituruku Kihiko
Plaintiff
Housing Finance Company of Kenya Ltd
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the defendant should be restrained by injunction from selling the plaintiff's property pending determination of the suit.
- 2 Whether the defendant acted in breach of the terms of the charge by charging excessive and unconscionable interest rates.
- 3 Whether the sale of the property was premature, illegal, or in bad faith.
Ratio Decidendi
The court found that the applicant's evidence, being unchallenged and uncontested due to the absence of a defence or replying affidavit from the defendant, must be accepted as the correct factual situation. The issues raised by the applicant went beyond mere disputes over accounts and included allegations of breach of charge terms, excessive interest, and procedural impropriety in the intended sale. In these circumstances, the court held that the defendant should be restrained by injunction from selling the plaintiff's property until the hearing and determination of the suit, and awarded costs to the plaintiff.
Court Disposition
injunction granted
Orders
- The defendant is restrained by injunction from advertising for sale, selling by public auction or private treaty, the applicant’s property (Flat No. A1 on L.R.21794) until the hearing and determination of the suit.
- The defendant shall bear the plaintiff’s costs of this application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 1842 OF 200
SAMUEL GITURUKU KIHIKO …………………………… PLAINTIFFVERSUSHOUSING FINANCE COMPANY OF KENYA LTD ………………… DEFENDANTR U L I N G
By an application by way of chamber summons dated 3rd December, 2001 the applicant seeks three(3) orders:-
1) injunction restraining the defendant from advertising for sale, selling by public auction or private treaty, the applicant’s piece of land known as Flat No. A1 on L.R.21794 (original No. 4857/89/90) as comprised in a lease registered as IR 76215/1.
2) Any other relief in the unique circumstances of the case.
3) Costs.
It is based on the grounds that:
a) the defendant has acted in breach and violation of the terms of the charge by:
1) purporting to charge rates of interest which is not provided for in the charge; nor
2) within the law and are
3) excessive and unconscionable
4) refusal of defendant to allow the plaintiff to settle the balance.
5) No valuation has been done to ascertain the true value of the property.
6) The purported sale is premature, illegal and in bad faith.
The application is predicated upon the annexed affidavit of SAMUEL GITURUKU KIHIKO sworn on the 3rd of December 2001.
Mr. Okwach for the applicant submitted that the defendant entered appearance on 19/12/2001 and as at 19th February 2002 no defence has been filed.
It was Mr. Okwach’s contention that in the circumstances all matters of facts are unchallenged and uncontested I should accept the evidence of the applicant as such.
Mr. Kibuchi conceded that neither replying affidavit nor defence has so far been filed nevertheless he contended that he was on solid grounds on law. He submitted that it is trite law that an injunction will not be granted merely because the amount in question is disputable. I agree.
However, the application and evidence in support raise much more than the issue of accounts. In the foregoing circumstances what is stated in the affidavit of the applicant remains uncontroverted and must, in the absence of any evidence to the contrary, be accepted as representing the correct factual situation as per Mbaluto J. in HIGH COURT AT MILIMANI COMMERCIAL COURTS: CIVIL CASE NO. 149 OF 1999 JORAM THUO WAIGA -vs- KENYA COMMERCIAL FINANCIAL COMPANY LTD. (unreported).
The upshot is that the defendant shall be restrained by an injunction in terms of prayer 1 of the chamber summons dated 3rd December 2001 until the hearing and determination of the suit. The defendant shall bear the plaintiff’s costs of this application.
DATED AT NAIROBI THIS 19th day of MARCH 2002.
N.R.O. OMBIJA
JUDGE
Read in the presence: Mr. Ouna for Okwach for plaintiff/applicant Mr. Kibicho for defendant/respondent