[2020] KEHC 5050 (KLR)
The court found that the joint valuation report had been filed as previously ordered, and since the parties had not reached a settlement on the outstanding loan arrears, the defendant was entitled to proceed with the exercise of its statutory power of sale. However, this right was conditional upon the auctioneer's...
Source-derived case information.
- Citation
- [2020] KEHC 5050 (KLR)
- Parties
- Plaintiff: Tonui Kipyegon Fredrick; Plaintiff: Kenneth Kipronoh Koech; Defendant: Faulu Microfinance Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 236 of 2018
- Procedural Posture
- Civil Suit / Ruling on Valuation and Power of Sale
- Outcome
- Defendant entitled to exercise power of sale upon compliance with Auctioneers Rules.
- Judges
- WA Okwany
- Legal Topics
- Valuation of Security, Power of Sale, Auctioneers Rules, Loan Arrears, Joint Valuation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tonui Kipyegon Fredrick
Plaintiff
Kenneth Kipronoh Koech
Plaintiff
Faulu Microfinance Bank Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Valuation and Power of Sale
Legal Issues
- 1 Whether the court-ordered joint valuation report has been filed as directed.
- 2 Whether the defendant is entitled to exercise its statutory power of sale after compliance with the court's previous orders and relevant auctioneers rules.
Ratio Decidendi
The court found that the joint valuation report had been filed as previously ordered, and since the parties had not reached a settlement on the outstanding loan arrears, the defendant was entitled to proceed with the exercise of its statutory power of sale. However, this right was conditional upon the auctioneer's strict compliance with Rule 15 of the Auctioneers Rules, which governs the conduct of sales by auction. The court's decision was grounded in ensuring procedural fairness and adherence to both its prior orders and the statutory framework regulating the sale of charged property.
Court Disposition
Defendant entitled to exercise power of sale upon compliance with Auctioneers Rules.
Orders
- Defendant/respondent may proceed to exercise its power of sale over the charged property, provided the auctioneer complies with Rule 15 of the Auctioneers Rules.
- The joint valuation report filed on 14/5/2019 is recognized as satisfying the court's previous order.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCC NO. 236 OF 2018
TONUI KIPYEGON FREDRICK......................................1ST PLAINTIFF/APPLICANT
KENNETH KIPRONOH KOECH..............................2ND PLAINTIFF/APPLICANT
VERSUS
FAULU MCROFINANCE BANK LIMITED...................DEFENDANT/RESPONDENT
RULING/DIRECTIONS
On valuation
1. Through the ruling delivered on 12th July 2018, this court, differently constituted, it was ordered, inter alia, that the defendant’s valuation report be expunged from the court record and that a fresh joint valuation report be made by the valuers to be agreed upon by the parties within 21 days failure to which the court would issue further directions.
2. On 4th October 2018, Counsel for the parties informed the court that they were unable to agree on the valuer after which the court appointed M/S Legend and Accurate Valuers to carry out the valuation and to submit their reports in court.
3. When the matter came up for mention on 28th January 2020, counsel for the plaintiff informed the court that a valuation report had already been filed on 14/5/2019.
4. In view of the filing of the valuation report, and considering that parties have not agreed on the settlement of the outstanding loan arrears, I find that the respondent/defendant is entitled to act on the ruling of the court of 12/7/2018 and exercise its power of sale upon compliance, by the auctioneer, with Rule 15 of the Auctioneers Rules.
Dated, signed and delivered via Microsoft Teams at Nairobi this 21st day of May 2020 in view of the declaration of measures restricting court operations due to Coved -19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on the 17th April 2020.
W. A. OKWANY
JUDGE
In the presence of:
No appearance for the parties
C/A & DR – Hon. Wanyama