[2017] KEHC 2051 (KLR)

REPUBLIC OF KENYA

THE HIGH COURT OF KENYA

AT NAKURU

HCC. NO 7 OF 2017

STANLEY KIPRUTO BOMMET..................................PLAINTIFF

-VERSUS-

NATIONAL BANK OF KENYA & ANOTHER......DEFENDANTS

RULING

1. The present suit arises out of a loan of Kshs.300,000/= advanced to the plaintiff by the 1st defendant way back on 2nd October 1989. The said loan was secured with a charge over the plaintiff’s property namely Baringo/Sabatia 103/153Baringo County. It is the contention of the plaintiff that he has fully repaid the loan and that the threatened realization of the security by the 1st defendant be injuncted. He prays for an order of mandatory and permanent injunction to restrain the defendants from auctioning, selling, disposing, alienating, transferring and/or interfering with the plaintiff’s interest in the suit property.

2. The plaintiff has contemporaneously filed a notice of motion seeking an order to stay the sale of the suit property pending the hearing and determination of application and the hearing and determination of the suit. The application is brought on grounds that the suit property has already been advertised for auction and that the plaintiff has already paid the loan in full and even exceeded the repayment by 1. 8 million shillings.

3. The Supporting Affidavit is sworn by the plaintiff Stanley Kipruto Bomet. He acknowledges that he was advanced the sum of Kshs.300,000/= in October 1989 by the 1st defendant. He avers that he has fully paid the loan; that the 2nd defendant had advertised the suit property; that he has a good case with high probability of success; that his home stands on the suit land and the intended auction will cause him irreparable loss and damage. The plaintiff also avers that the 1st defendant has charged him interest over and above the legal base lending rate and has not issued him statements contrary to the Banking Act.

4. Paul K. Chelanga, the Manager Recoveries of the 1st defendant has sworn a Replying Affidavit opposing the application. He depones that there had been a previous suit filed by the plaintiff which was struck out by the court and a statutory note of sale was issued to the plaintiff/applicant; that the plaintiff had been making promises to repay the outstanding loan without fulfilling the same; that the plaintiff failed to pay the final offer of Kshs.600,000/= within the agreed 14 days making the said offer lapse. In a further affidavit dated 5th April 2017, Paul Chelanga deponed that the bank had changed and upgraded its Wang Computer System to the current BF UB System in which the plaintiff’s account was changed to No.[Particulars withheld] and that it was therefore not truthful for the plaintiff to allege that the said account did not exist yet he deposited Kshs.1,400,000/= in the said account.

5. Other than the affidavits, parties filed submissions which I have considered.

6. The court is aware that it ought not delve into the merits of the plaintiff’s case at this point. It should be guided by the principles set out in Giella Vs Cassman Brown & Co. Ltd (1973) E.A 358. The applicant must show that he has a prima facie case with probability of success. Secondly, an injunction will not normally be granted unless the applicant shows that he will suffer irreparable injury not compensable by an award of damages. Where the court is in doubt, it will decide the application on a balance of convenience. See also Francis M. Mutua –V- Southern Credit Banking Corporation Ltd (2010) eKLR.

7. The question before court is whether the applicant has met all or any of the aforestated conditions to deserve the injunctive orders sought. It is apparent from the pleadings so far that the dispute between the parties is the interest rate chargeable and the outstanding loan amount. At this interlocutory stage, and as observed earlier it would be premature for the court to delve into the merits of the opposing arguments. In Nguruman Limited V. Jan Bonde Nielsen & 2 Others CA No.77 of 2012 the court of appeal stated: “We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case.”

8. In Mrao Ltd Vs First American Bank of Kenya Ltd & 2 others (2003) KLR 125 the court of appeal explained what constitutes prima facie case thus:-

“In civil cases, a prima facie case is a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That clearly is a standard which is higher than an arguable case.”

9. It is not disputed in this case that there exists a valid charge over the suit property. What is disputed is the interest owing and due from the plaintiff/applicant. The applicant avers in his supporting affidavit that in his calculation he has already paid the full amount owed. He submits that the respondent has charged interest at rates that were contrary to the Banking Act. That as a result he has already over paid the respondent by Kshs.1,800,000/=. The respondents on the other hand dispute that applicant has repaid the full loan. Paul Chelanga who the respondent’s manager in charge of recoveries deponed in his further affidavit in answer to the allegation that the loan was fully paid that the applicant had admitted owing an outstanding amount of Kshs.3,458,887/=. Suffice to state that is an issue that makes the plaintiff’s case arguable. This is particularly so because both the applicant and the respondent acknowledge that there have been negotiations between the parties on the outstanding amount and that is sought to be proved is the interest chargeable. Applying these facts to the standard in the Mrao case above, I am satisfied that the applicant has established a prima facie case.

10. Secondly, the applicant has argued that he would suffer irreparable damage not compensable by damages if the order was not granted. He depones that his matrimonial home stands on the suit land and that the sale of his home would cause irreparable damage In Vivo Energy Kenya Limited Versus Maloba Petrol Station & 3 others (2015) eKLR the Court of Appeal stated that: - “the equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury: that is injury that is actual, substantial and demonstrated; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which the amount can be measured with reasonable accuracy or the injury or harm is such nature that monetary compensation, of whatever amount, will never be adequate remedy.” In the present case, the applicant has placed material before court to demonstrate that his family resides and indeed has always resided on the suit land and that the respondent has in the past indulged him the rescheduling of the debt this account and on account of his ill health. I am persuaded that the loss of his home would case him irreparable injury.

11. For foregoing reasons, I allow the application dated 22nd February, 2017 and grant the order that there be a stay of sale. The defendants by themselves, their servants, agents or otherwise are restrained from selling, disposing, auctioning, transferring and/or in any way interfering with the Plaintiff’s parcel of land known as Baringo/Sabatia 103/153 – Baringo County pending the hearing and determination of the suit. Considering the age of the disputed loan, I further order that the plaintiff shall take steps to set down the suit for hearing within 60 days.

Ruling delivered, dated and signed in open court this 7th day of November 2017

R. LAGAT KORIR

JUDGE

In the presence of:

C/A Emojong

M/s Moenga for applicants

N/A for respondents