[2012] KEHC 825 (KLR)
The court found that the applicant had not established a prima facie case with a probability of success, as he admitted owing money to the 1st respondent. The court also noted that a similar application had previously been dismissed and that the property had already been sold, rendering the application belated and...
Source-derived case information.
- Citation
- [2012] KEHC 825 (KLR)
- Parties
- Plaintiff: William Njihia Kimani; Defendant: Equity Bank Ltd; Defendant: Justus Munene Munyi; Defendant: T. Maina Waweru t/a Antique Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 65 of 2011
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- CM Njagi, C.N Mutava
- Legal Topics
- Interlocutory Injunctions, Loan Repayment Disputes, Mortgage Enforcement, Sale of Secured Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Njihia Kimani
Plaintiff
Equity Bank Ltd
Defendant
Justus Munene Munyi
Defendant
T. Maina Waweru t/a Antique Auctioneers
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to an interlocutory injunction restraining the sale or disposal of the suit property pending determination of the suit.
- 2 Whether the applicant has established a prima facie case with a probability of success as required for the grant of an interlocutory injunction.
- 3 Whether the applicant's admission of indebtedness affects his entitlement to injunctive relief.
Ratio Decidendi
The court found that the applicant had not established a prima facie case with a probability of success, as he admitted owing money to the 1st respondent. The court also noted that a similar application had previously been dismissed and that the property had already been sold, rendering the application belated and futile. The applicant's plea to abide by any terms set by the court was deemed inappropriate, as the court's role is not to create or impose contracts for the parties. Consequently, the application for an interlocutory injunction was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for an interlocutory injunction is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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WILLIAM NJIHIA KIMANI.……………….............…………………….PLAINTIFF
VERSUS
EQUITY BANK LTD………………………..…....……….….…1ST DEFENDANT
JUSTUS MUNENE MUNYI………………….……….......……..2ND DEFENDANT
T. MAINA WAWERU T/AANTIQUE AUCTIONEERS………..3RD DEFENDANT
RULING
By this application, the Applicant prays from the court an order of injunction restraining the Defendant/Respondent from selling or disposing off land parcel L.R. No. Dagoretti/Ruthimitu/776 pending the hearing and determination of this suit. The application is made by a Chamber Summons dated 1st September, 2011 and taken out under Order 40 Rule 1(a) of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act.
It is supported by the Applicant’s affidavit sworn on 1st September, 2011 and is based on the grounds that the Applicant’s company has been repaying the amount lent to it by the defendant. The said company is intent on fully repaying any amount lent to it together with interest thereon, and the Applicant is ready and willing to abide by any terms and conditions that may be set by the court as a precondition to being granted the prayers sought.
In opposition to the application, the 1st Respondent filed a replying affidavit sworn by Purity Kinyanjui, the Head of its Debt Recovery Unit, on 9th September, 2011. After considering the pleadings and the submissions of the respective counsel, I note that this application is very similar the one dated 1st March, 2011 which was heard and dismissed by this court on 28th July, 2011. The property in question has since then been sold, and the attempts by the Applicant to block any sale are belated.
In any event, in grounds 6, 7 and 8 of those on which the application is premised, the Applicant pleads that he has been repaying the loan lent to him by the 1st Respondent and intends to clear any outstanding balance. This is a clear admission that he still owes money to the 1st Respondent. Upon such an admission, he has not established a prima facie case with a probability of success as a pre requisite for the grant of an interlocutory injunction as required in GIELLA v CASSMAN BROWN & CO. LTD [1973] EA, 358.
It is also futile for the Applicant to plead that he is ready and willing to abide by any terms and conditions that may be set by the court as a precondition to being granted the prayers sought. Such a plea should have been made to the 1st Respondent in the first instance. The court does not make or impose contracts for litigants. It only interprets such contracts as have been entered into by litigants. As Scrutton L.J said in BROWN v ABRASIVE WHEEL CO. [1927] KB,it is not the business of the court to run the affairs of companies. That is best left to shareholders and heir directors.
In sum, I don’t find a shred of merit in this application. It is accordingly dismissed with costs.
Orders accordingly.
L. NJAGI
JUDGE
DATEDand DELIVERED at NAIROBI this 21st day of November, 2012
MUTAVA
JUDGE