[2021] KEHC 8064 (KLR)
The court found that the applicants had established a prima facie case warranting the grant of an interim temporary order of injunction. This was based on the urgency of the matter, the imminent sale of immovable property, the existence of contradictory statements regarding the amount owed, and the applicants' claim...
Source-derived case information.
- Citation
- [2021] KEHC 8064 (KLR)
- Parties
- Applicant: Willy Tsialango Imbiti; Applicant: Moses Ayodi Tsialango; Defendant: Molyn Credit Ltd; Defendant: Jakacha Auctioneers
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Case E001 of 2021
- Procedural Posture
- Civil Case / Interim Application for Injunction During Recess
- Outcome
- interim injunction granted
- Judges
- RE Aburili
- Legal Topics
- Injunctive Relief, Land Sale Disputes, Loan Default, Auction Process, Notice Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Willy Tsialango Imbiti
Applicant
Moses Ayodi Tsialango
Applicant
Molyn Credit Ltd
Defendant
Jakacha Auctioneers
Defendant
Procedural Posture
Civil Case / Interim Application for Injunction During Recess
Legal Issues
- 1 Whether the applicants have established a prima facie case for grant of a temporary injunction to restrain the sale of the suit property.
- 2 Whether the applicants were served with a notice of default as required after rescheduling the loan repayment.
- 3 Whether the outstanding loan amount claimed by the 1st defendant is justified.
Ratio Decidendi
The court found that the applicants had established a prima facie case warranting the grant of an interim temporary order of injunction. This was based on the urgency of the matter, the imminent sale of immovable property, the existence of contradictory statements regarding the amount owed, and the applicants' claim of lack of notice of default after loan rescheduling. The court held that, in the interest of justice and given the difficulty of redeeming sold land, it was appropriate to grant a temporary injunction restraining the defendants from selling or interfering with the suit property pending inter partes hearing.
Court Disposition
interim injunction granted
Orders
- A temporary order of injunction is issued restraining Molyn Credit Ltd and Jakacha Auctioneers, their agents, assigns or representatives from advertising for sale, selling, disposing of or otherwise interfering or dealing with land Parcel No. LR No. North Maragoli/Lyaduywa/2143 pending interpartes consideration of...
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
SIAYA CIVIL CASE NO.E06 OF 2021
ORIGINATING FROM
VIHIGA HIGH COURT
CIVIL CASE NO. E001 OF 2021
WILLY TSIALANGO IMBITI...............1ST APPLICANT/PLAINTIFF
MOSES AYODI TSIALANGO..............2ND APPLICANT/PLAINTIFF
VERSUS
MOLYN CREDIT LTD..................................................1ST DEFENDANT
JAKACHA AUCTIONEERS........................................2ND DEFENDANT
RULING
1. I have heard Mr. Chitwa advocate for the Applicant/Plaintiff orally and I have considered the application dated 24/3/2021 seeking to be heard during the recess, under Certificate of urgency. I note that the subject matter of this suit filed at Vihiga High Court is immovable property and is due for sale on 26/3/2021 at 10. 30 a.m. The matter is therefore urgent.
2. I certify it as urgent and direct that the application be considered during the Easter Recess.
3. On the main prayers in the Notice of Motion, I observe that the property to be sold is land and there are contradictory statements on what the applicants owe the 1st Respondent to date. The applicants also claim that no notice of default was send to them after rescheduling the loan repayment following the effects of covid-19 pandemic. Further, that the applicants paid the outstanding loan plus interest hence the over Kshs. 4,000,000 is unjustified.
4. In my humble view, the applicant has established, on a balance of probabilities, a prima facie case to warrant an interim temporary order of stay of sale of the property known as LR No. North Maragoli/Lyaduywa/2143 registered in the name of Willy Tsialando Imbiti.
5. For the above reasons, and in the interest of justice, as redeeming a sold land is not an easy task, I hereby allow prayer No. 2 of the Notice of Motion dated 24/3/2021 in the interim and order that:
(1) There shall be a temporary order of injunction restraining the defendants Molyn Credit Ltd and Jakacha Auctioneers, their agents, assigns or their representatives from advertising for sale, selling, disposing of or otherwise interfering or dealing with land Parcel No. LR No. North Maragoli/Lyaduywa/2143 pending interpartes consideration of this application on 8th April, 2021 before the duty Judge in Kakamega High Court.
6. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA, THIS 25TH DAY OF MARCH 2021
R.E. ABURILI
JUDGE
In the presence of:
Mr. Chitwa Advocate for the applicant
CA: Modestar and Mboya