[2012] KEHC 477 (KLR)
The court found that the plaintiffs had been served with a statutory notice as required by law, contrary to their assertions. The plaintiffs admitted to owing money under the mortgage and had not demonstrated a prima facie case with a probability of success. Furthermore, the court held that the plaintiffs' claim for...
Source-derived case information.
- Citation
- [2012] KEHC 477 (KLR)
- Parties
- Plaintiff: Suleiman Rashid Shakombo; Plaintiff: Hanifa Suleiman Shakombo; Defendant: Savings & Loan (K) Limited; Defendant: Garam Investments
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 518 of 2010
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- CM Njagi, A Mabeya
- Legal Topics
- Interlocutory Injunctions, Statutory Power of Sale, Mortgage Enforcement, Service of Statutory Notice, Amendment of Pleadings, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suleiman Rashid Shakombo
Plaintiff
Hanifa Suleiman Shakombo
Plaintiff
Savings & Loan (K) Limited
Defendant
Garam Investments
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiffs were served with a valid statutory notice prior to the exercise of the statutory power of sale.
- 2 Whether the plaintiffs have established a prima facie case with a probability of success to warrant the grant of an injunction.
- 3 Whether damages would be an adequate remedy for the plaintiffs if the injunction is not granted.
Ratio Decidendi
The court found that the plaintiffs had been served with a statutory notice as required by law, contrary to their assertions. The plaintiffs admitted to owing money under the mortgage and had not demonstrated a prima facie case with a probability of success. Furthermore, the court held that the plaintiffs' claim for general damages indicated that any loss could be compensated monetarily, negating the need for an injunction. The court also noted that the proper party to sue was Kenya Commercial Bank due to the amalgamation, but allowed for amendment of pleadings. Applying the principles in GIELLA v CASSMAN BROWN, the court concluded that the conditions for granting an interlocutory...
Court Disposition
application dismissed with costs
Orders
- The application for injunction is dismissed with costs to the defendants.
- Plaintiffs are at liberty to amend the plaint to reflect the correct party following amalgamation.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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SULEIMAN RASHID SHAKOMBO……….…………….….....1ST PLAINTIFF
HANIFA SULEIMAN SHAKOMBO……..……………...……..2ND PLAINTIFF
VERSUS
SAVINGS & LOAN (K) LIMITED…..……..……………...…..1ST DEFENDANT
GARAM INVESTMENTS…………………..………………..2ND DEFENDANT
RULING
This application is brought by a Chamber Summons dated 28th July, 2010 and taken out under Order XXXIX Rules 2(1) and9 of the (old) Civil Procedure Rules. The Applicants thereby pray for an injunction restraining the Defendants from selling by public auction or otherwise the property known as Maisonette No. “A” situate on L.R. No. 1/855 Nairobi, pending the hearing and determination of the suit.
The application is supported by the annexed affidavit sworn by the 1st Applicant on 28th July, 2010 and is based, inter alia, on the grounds that-
(a)No statutory notice was issued by the 1st Defendant to the Plaintiffs or any one of them prior to the 1st Defendant purporting to exercise its statutory power of sale.
(b)The 1st Defendant’s statutory power of sale has not arisen and the intended sale of the suit property on 3rd August, 2010 is illegal and irregular.
(c)The Plaintiffs have made alternative arrangements to clear the mortgage debt (subject to determine of the interest rates and other charges levied on their mortgage account) and are desirous of discharging and releasing the suit property from the effects of the charge.
(d)The Plaintiff and each one of them stand to suffer irreparable loss and damages unless the Defendant is restrained by an order of injunction.
The Respondents oppose the application by way of a replying affidavit sworn on 17th September, 2010 by one Anthony Kasyoka, a Relationship Manager, Credit Support, with Kenya Commercial Bank Limited.
With leave of the court, the parties herein filed skeleton submissions.
The first issue raised by the Respondents was that pursuant to Gazette Notice Number 1036 of 2nd October, 2009 and issued under Section 9 of the Banking Act, Savings and Loan Kenya Limited was amalgamated with Kenya Commercial Bank with effect from 1st January, 2010, and the Applicant ought to have sued the Kenya Commercial Bank and not Savings and Loan Kenya Limited. Whereas that is the way it should have been, I think that the Applicants can be accommodated by allowing them to amend the Plaint in order to conform with the present reality on the ground.
With regard to the issue of money owing to the Respondents, Mr. Kasyoka avers in his replying affidavit that the Applicants have never repaid the facility in terms of the instrument of mortgage. This assertion drives some support from paragraph 8 of the affidavit sworn by the 1st Applicant wherein he states that the Applicants “fell into economic difficulties in repaying the mortgage debt” and that at the date of swearing his affidavit (i.e on 28th July, 2010) they had paid KShs. 1,000,000/=. This is a confirmation that the Applicants indeed owe the Respondent some money.
The next issue picked by the Applicants is that they were not served with a statutory notice. That is not correct. They were served with a statutory notice dated 24th June, 2009, and sent by registered post to the Applicant’s postal address given in the mortgage document.
In view of the foregoing, I find that the Applicants have not made out a prima facie case with a probability of success. Secondly, I note from the Applicant’s claim in the plaint that they are claiming general damages. This shows that they can be compensated in monetary terms, and therefore there is a good alternative to an injunction. In the circumstances, I find that the main conditions for the grant of an injunction as laid down in GIELLA v CASSMAN BROWN & CO. LTD [1972] E.A 358, have not been satisfied.
For the foregoing reasons, this application fails and it is hereby dismissed with costs.
L. NJAGI
JUDGE
DATEDand DELIVERED at NAIROBI this 19th day of November, 2012.
MABEYA
JUDGE