[2019] KEHC 711 (KLR)
The court found that the Plaintiff had admitted both default and breach of a prior consent order. No legal or procedural irregularity, such as non-service of statutory notices, was alleged or proved. The Plaintiff's request was based solely on a plea for indulgence to allow time for a private sale, which the court...
Source-derived case information.
- Citation
- [2019] KEHC 711 (KLR)
- Parties
- Plaintiff: Sema Health Products; Defendant: Housing Finance Company of Kenya Limited; Defendant: Taifa Auctioneers; Defendant: Njogu-Ini Building Investment Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 209 of 2019
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- F Tuiyott
- Legal Topics
- Mortgage Enforcement, Injunctive Relief, Default and Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sema Health Products
Plaintiff
Housing Finance Company of Kenya Limited
Defendant
Taifa Auctioneers
Defendant
Njogu-Ini Building Investment Limited
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Plaintiff is entitled to an injunction restraining the auction of the charged property despite admitted default and breach of consent order.
- 2 Whether the Plaintiff has demonstrated any legal basis to stop the auction scheduled for 4th December 2019.
Ratio Decidendi
The court found that the Plaintiff had admitted both default and breach of a prior consent order. No legal or procedural irregularity, such as non-service of statutory notices, was alleged or proved. The Plaintiff's request was based solely on a plea for indulgence to allow time for a private sale, which the court found insufficient. The court held that once default occurs and the statutory power of sale arises, and in the absence of any legal defect in the process, the mortgagee is entitled to proceed with the sale. The Plaintiff had already been granted previous indulgence and had ample opportunity to arrange a private sale. Therefore, the application for injunction lacked merit and was...
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 27th November 2019 is dismissed with costs.
- The auction scheduled for 4th December 2019 may proceed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
HCC NO. E 209 OF 2019
SEMA HEALTH PRODUCTS..........................PLAINTIFF/RESPONDENT
VS.
HOUSING FINANCE COMPANY
OF KENYA LIMITED...........................1ST DEFENDANT/RESPONDENT
TAIFA AUCTIONEERS........................2ND DEFENDANT/RESPONDENT
NJOGU-INI BUILDING INVESTMENT
LIMITED........................PROPOSED 3RD DEFENDANT/RESPONDENT
RULING
1. There has been default. It is admitted.
2. There has been a consent. It has been breached. It is admitted.
3. No reason at law is put forward to injunct the auction due for tomorrow 4th December 2019. No allegation of non-service of statutory notices or such other reasons are argued.
4. All the Plaintiff seeks is indulgence from this Court and the Bank. There has been previous indulgence by the Bank.
5. When the Plaintiff charged the property, it was within its contemplation that the property would be sold in the event of default. There is now default and the event upon which a sale can take place has occurred. Miss Abuya tells this Court that a sale is a sale whether it will happen by public auction or the private arrangement proposed by the Plaintiff. Yes both are sales but the private arrangement may achieve a better deal for the Plaintiff because it may get a better price than a forced sale value. But the luxury for a better bargain may have past because the Plaintiff has had more than enough time to conclude a private treaty sale.
6. I will allow the auction to proceed. I trust that the Bank is well aware of the consequences of a sale at an under value. I also trust that the Plaintiff would be alive to the remedy available to it in the event of such a sale.
7. The Notice of Motion dated 27th November 2019 is without merit and is dismissed with costs.
Dated, Signed and Delivered in Court at Nairobi this 3rd Day of December, 2019
F. TUIYOTT
JUDGE
PRESENT;
Kahuthu for Plaintiff
Abuya for Karungo for 1st and 2nd Defendants
Court Assistant: Nixon