[2006] KEHC 2876 (KLR)
The court found that the applicants had not made any payments towards the loan since 2001, and the cheque for the last installment was dishonoured. The application for injunction was brought over two years after the judgment, with no leave to appeal out of time having been sought or granted. The court held that the...
Source-derived case information.
- Citation
- [2006] KEHC 2876 (KLR)
- Parties
- Plaintiff: William M. Khamasi; Plaintiff: Leonida J. Khamaai; Defendant: Housing Finance Company of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1644 of 2001
- Procedural Posture
- Injunction Application / Ruling on Application for Injunction Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Injunctions, Mortgage Enforcement, Appeals, Interest on Loans
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William M. Khamasi
Plaintiff
Leonida J. Khamaai
Plaintiff
Housing Finance Company of Kenya Ltd
Defendant
Procedural Posture
Injunction Application / Ruling on Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to an injunction pending appeal against the sale of the suit property.
- 2 Whether the interest charged by the defendant was unlawful.
- 3 Whether the delay in filing the application and intended appeal bars the applicants from relief.
Ratio Decidendi
The court found that the applicants had not made any payments towards the loan since 2001, and the cheque for the last installment was dishonoured. The application for injunction was brought over two years after the judgment, with no leave to appeal out of time having been sought or granted. The court held that the intended appeal was an exercise in futility, and the delay in bringing the application indicated a lack of seriousness on the part of the applicants. Consequently, the application for injunction pending appeal was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for injunction pending appeal is dismissed with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
Civil Case 1644 Of 2001
WILLIAM M. KHAMASI……………………………...……………….1ST PLAINTIFF
LEONIDA J. KHAMAAI…………………………………………….2ND PLAINTIFF
VERSUS
HOUSING FINANCE COMPANY OF KENYA LTD……...………..DEFENDANT
RULING
The applicant filed this suit seeking orders of injunction to restrain the respondent from advertising, selling, alienating or transferring the suit property known as LR NO. NNAIROBI/BLOCK 82/767 which they had offered as security for a loan of Shs.330,006/=. The suit was dismissed with costs by Lenaola on 24th February 2004.
The judge found as a fact that the applicant had settled the balance of the last instalment of Shs.165,610/= by cheque which was dishonoured and for a period of over 6 years up to 2001 no money was paid. By 24th February 2006 the interest had accumulated and reached Shs.3,023,278/=. This application is for an injunction pending intended appeal whose main ground is that the interest charged was unlawful.
The application is challenged on the ground that the intended appeal has no chances of success. Further it is submitted that this application is made over 2 years since the judgment was delivered and that though the applicants conceded that they have not made any payments since 2001, no efforts have been made to make any payment even after the judgment. The time within which to file appeal having lapsed and there being no leave granted to appeal out of time the intended appeal is an exercise in futility. Bringing this application over two years after the judgment was delivered is a clear indication that the applicants did not take this matter seriously.
The application is dismissed with costs.
Dated and delivered at Nairobi this 16th day of February 2006.
J.L.A. OSIEMO
JUDGE