[2018] KEELC 3473 (KLR)

[2018] KEELC 3473 (KLR)

Although the strict application of the law would not permit the court to restrain the respondent from exercising its statutory power of sale solely due to a dispute over the amount due, the court found that the applicant had substantially met his loan obligations, having paid the principal and a significant portion of the interest and charges. Given these special circumstances, the court held that the applicant would be greatly prejudiced if the sale proceeded before the dispute was resolved. Exercising its discretion under Section 104(4) of the Land Act, the court granted a temporary injunction restraining the respondent from selling the suit property until the hearing and determination...

Citation
[2018] KEELC 3473 (KLR)
Parties
Applicant: Solomon Mahugu Muriithi; Respondent: Kenya Industrial Estates Ltd
Court
Environment and Land Court
Court Station
Environment and Land Court at Nyeri
Jurisdiction
Kenya
Judgment Date
19 April 2018
Case Number
Environment & Land Case 23 of 2017
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction
Outcome
Application allowed in terms of prayer (iii). Temporary injunction granted restraining sale of the suit property pending determination of the suit.
Judges
L Waithaka
Legal Topics
Injunctive Relief, Statutory Power of Sale, Mortgage Disputes, Loan Repayment, Irreparable Harm
Source Language
English
Land and Property Civil Procedure Injunctive Relief Statutory Power of Sale Mortgage Disputes Loan Repayment Irreparable Harm

Case Brief

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Parties

Solomon Mahugu Muriithi

Applicant

Kenya Industrial Estates Ltd

Respondent

Procedural Posture

Notice of Motion / Ruling on Interlocutory Injunction

Legal Issues

  1. 1 Whether the applicant has established a prima facie case to warrant the grant of a temporary injunction restraining the sale of the suit property.
  2. 2 Whether the applicant will suffer irreparable harm if the injunction is not granted.
  3. 3 Whether the balance of convenience tilts in favour of granting the injunction.

Ratio Decidendi

Although the strict application of the law would not permit the court to restrain the respondent from exercising its statutory power of sale solely due to a dispute over the amount due, the court found that the applicant had substantially met his loan obligations, having paid the principal and a significant portion of the interest and charges. Given these special circumstances, the court held that the applicant would be greatly prejudiced if the sale proceeded before the dispute was resolved. Exercising its discretion under Section 104(4) of the Land Act, the court granted a temporary injunction restraining the respondent from selling the suit property until the hearing and determination...

Court Disposition

Application allowed in terms of prayer (iii). Temporary injunction granted restraining sale of the suit property pending determination of the suit.

Orders

  • A temporary injunction is hereby issued restraining the respondent, its agents, servants or auctioneers from selling LR. No. Tetu/Kiriti/373 until the hearing and determination of the suit.
  • Costs of the application shall abide the outcome of the suit.