[2011] KEHC 3202 (KLR)
The court found that the defendant had not issued a statutory notice to the plaintiff prior to advertising the charged property for auction, as required by law. The defendant's counsel conceded this omission. In the absence of a valid statutory notice, the defendant's attempt to sell the property was unlawful. The...
Source-derived case information.
- Citation
- [2011] KEHC 3202 (KLR)
- Parties
- Plaintiff: Zephania Juma Ajowi; Defendant: Co-operative Bank of Kenya Ltd
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 117 of 2010
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- Interlocutory injunction granted restraining sale of property; liberty to issue fresh statutory notice; costs in the cause.
- Legal Topics
- Injunctive Relief, Statutory Notice Requirements, Charge Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zephania Juma Ajowi
Plaintiff
Co-operative Bank of Kenya Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the defendant issued a valid statutory notice prior to advertising the charged property for auction.
- 2 Whether the plaintiff is entitled to an injunction restraining the sale of the property.
Ratio Decidendi
The court found that the defendant had not issued a statutory notice to the plaintiff prior to advertising the charged property for auction, as required by law. The defendant's counsel conceded this omission. In the absence of a valid statutory notice, the defendant's attempt to sell the property was unlawful. The court therefore granted an injunction restraining the defendant from selling, disposing of, or auctioning the property based on the advertisements of 5th and 20th July, 2010. However, the defendant was granted liberty to issue a fresh statutory notice should the loan remain unserviced.
Court Disposition
Interlocutory injunction granted restraining sale of property; liberty to issue fresh statutory notice; costs in the cause.
Orders
- The defendant, its servants and/or agents are restrained from selling, disposing of or auctioning property number L. R. No. KISUMU/KANYAKWAR ‘A’/113 based on the advertisement of 5th & 20th July, 2010.
- The defendant is at liberty to issue a fresh statutory notice in the event the loan remains unserviced.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CIVIL CASE NO. 117 OF 2010
ZEPHANIA JUMA AJOWI ……………………………………….… PLAINTIFF
-VERSUS-
CO-OPERATIVE BANK OF KENYA LTD …….…..........…… DEFENDANT
R U L I N G
The application is dated 19/7/2010. The subject was up for auction for default of payment of sums due and owing to the defendant. The plaintiff/applicant guaranteed Winam Petroleum Products Limited and charged his Property L. R. No. KISUMU/KANYAKWAR ‘A’/113. He complains inter alia that no statutory notice was issued. The defence counsel concedes to this fact.
Having considered the application and submissions before court and concession by the defence counsel, I hereby grant prayer 3 of the chamber summons to the extent that the respondent, its servants and or agents are restrained from selling, disposing of or auctioning property number L. R. No. KISUMU/KANYAKWAR‘A’/113based on the advertisement of 5th & 20th July, 2010. The defendant however be at liberty to issue a fresh statutory notice in the event the loan remains unserviced. Costs in the cause.
DATED AND DELIVERED THIS 6TH APRIL, 2011.
ALI-ARONI
JUDGE
In the presence of:
Mr. Jamsumba Advocate h/b for Mr. Mwamu
Advocatefor plaintiff
Mr. Odhiambo Owiti present for defendant