Benjamin Ndola Ndaka, Josephine Wayua Mwinzi, Patrick Mulwa, Fidelis Musembi, Elizabeth Ndunge Kilambya v Caroline Ngina Mwongela, Seth Wanzau & Rafiki Microfinance Bank Limited [2018] KEHC 5190 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HCCC. NO. 4 OF 2018

BENJAMIN NDOLA NDAKA ...............................................1ST APPLICANT

JOSEPHINE WAYUA MWINZI .......................................... 2ND APPLICANT

PATRICK MULWA.................................................................3RD APPLICANT

FIDELIS MUSEMBI...............................................................4TH APPLICANT

ELIZABETH NDUNGE KILAMBYA ..................................5TH APPLICANT

-VERSUS-

CAROLINE NGINA MWONGELA ................................ 1ST RESPONDENT

SETH WANZAU................................................................. 2ND RESPONDENT

RAFIKI MICROFINANCE BANK LIMITED.................3RD RESPONDENT

RULING

INTRODUCTION

1. By notice of motion dated 11/04/2018,the Applicant seek orders that:-

1. That the matter be certified as urgent and service thereof be dispensed within the first instance.

2. That pending inter parties hearing of this application, this Honourable court be pleased to issue an order of stay of execution of the ruling and order made on 1st March 2018 and subsequently restrain the 3rd Respondent, its agent, servants or any one acting through it from repossessing, selling, advertising for sale and or in any other manner interfering with the suit properties herein being MAKUENI/UNOA/2790, 2798, 2808 and 2811 pending hearing and determination of this application.

3. That this Honourable court be pleased to issue an order of stay of execution of the ruling and order made on the 1st March 2018 and subsequently restrain the 3rd Respondent, its agent, servants or any one acting through it from repossessing, selling, advertising for sale and or in any other manner interfering with the suit properties herein being MAKUENI/UNOA/2790/2798, 2808 and 2811 pending hearing and determination of Civil Application no. 86 of 2018 (UR 74 of 2018).

4. That the costs of the application be in the cause.

2. The same is based on grounds;

1. That the applicants herein filed an application dated 30/08/2017 which application sought orders of injunction restraining the 3rd Respondent, its agent, servants or any one acting through it from repossessing, selling, advertising for sale and or in any other manner interfering with the suit properties herein being MAKUENI/UNOA/2790, 2798, 2808 and 2811 pending the hearing of the suit.

2. That the applicants described themselves as purchasers and actual owners and occupiers of the suit properties herein despite the fact that the titles were yet to be transferred to them by the 1st Respondent being the registered owner.

3. That the registered owner before transferring the suit properties to them went ahead without their consent and obtained a loan from the 3rd Respondent which she defaulted with payments thereof.

4. That the applicants contended that the offering of titles as securities, in the knowledge that the 1st Respondent had no proprietary rights over the suit properties and that she had not obtained the consent of the applicants was fraudulent and therefore illegal.

5. That due to the 1st Respondent’s default in the repayment of the loan, the 3rd Respondent initiated a process of repossessing the said securities, a process the applicant contended was illegal and un procedural.

6. That this court however dismissed the Applicant’s application for injunctive orders vide its ruling dated 1st March 2018.

7. That the effect of that order is that the 3rd Respondent is at liberty to proceed to sell by way of public auction the above named subject properties.

8. That the applicants herein are aggrieved by the said ruling and have indeed lodged an appeal in the court of appeal together with an application in the court of appeal filed under certificate of urgency seeking stay of execution, being civil application No. 86 of 2018 (UR 74 of 2018.

9. That there being no order of stay, the 3rd Respondent has now advertised the said properties for sale vide a newspaper advert whereby the sale is scheduled on 12/04/2018.

10. That the said application was certified urgent but the   same has been scheduled for hearing on the 14/06/2018 which is way beyond the scheduled sale date.

11. That unless this Honourable court urgently intervenes, the appeal filed herein may be rendered nugatory as the Respondents shall proceed and sell by way of public auction the above named properties as they have already advertised for the sale of the same on 12/04/2018 vide a newspaper advert.

12. That should the applicants be successful in this appeal, the success would be pyrrhic and would be in vain if the orders of stay are not granted as the suit properties will long have been disposed off and be far from the reach of the applicants.

13. That the applicants have in their pleadings demonstrated that they have invested heavily in the said properties and they stand to suffer substantial loss of their investments if the orders sought are not granted.

14. That the applicants are willing to abide by any orders of this court as to security for costs.

3. It is supported by affidavit of Benjamin Ndula Ndaka sworn on 11/04/2018 which reiterates the above grounds.

4. The application is anchored on the provisions of Orders 22 Rule 22, 42 and 51 Civil Procedure Rule Section 1A, 1B and 3A CPR.

5. Respondent number 1 and 2 do not oppose the application but 3rd Respondent opposes the same and has filed a replying affidavit sworn by Jane Warau on 18/05/2018.

6. By notice of motion dated 30/08/2017 the applicant sought injunctive reliefs to stop the 3rd Respondent from exercising their power of sale pursuant to the charge executed mortgaging MAKUENI/UNOA/2790,2798, 2808, and 2811.

7. After hearing the matter, my brother Judge Mbogo ELC dismissed the application.  The court observed that: “…… the balance of convenience …. in favor of the 3rd Respondent.

8. There is no denial of the fact that the 1st Respondent secured a loan facility and she is in default of the loan payment in the sum of Kshs.293,734/58 as at 10/07/2017……

9. Even if applicants were to succeed at the substantive hearing of the suit …. and thereafter, unable to recover their properties from the new owners the value of their properties is quantifiable and can be compensated in damages …………”

10. The application was thus dismissed for want of merit. The applicants now seek this court to stay the DISMISSAL Order of 01/03/2018 and issue injunction pending the hearing of Civil Application No. 86 of 2018 in the court of appeal.

11. The court of appeal noted the urgency of the matter and fixed the hearing of the application on 05/07/2018.  However, the applicant refused and/or failed to serve the Respondent No.1 and 2.  Thus the matter was adjourned without a date being fixed.

12. Of course the Applicant squandered the opportunity to argue their matter due to what appears to be lack of due diligence in effecting service.

13. There is no date fixed for hearing the said court of appeal matter.  This court is being asked to stay a dismissal and there after issue an injunction.  This court is not moved under the provisions of Order 46 for injunction pending appeal but on provisions essentially on discretion of court.

14. The matter is already seized by the court of appeal on application for injunction and or stay pending intended appeal or pending appeal.

15. Of course the Applicant is seeking to utilize the two parallel jurisdictions at the same time.

16. This court finds that it is not prepared to deal with the matter on merit on the grounds that:-

1. The stay before this court is for a dismissal order which adds no value to the Applicant.  It would be academic to stay dismissal.

2. The injunction sought has already been found to lack merit and it is subject of the court of appeal and also application for stay pending appeal.

3. The applicants have squandered their chance to prosecute their urgent application before the court of appeal thus they have no date for canvassing the same.

17. The Applicant should move the court of appeal with speed to preserve the subject matter if they find that their application has merit.

18. Thus court declines to grant orders sought with no orders as to costs.

SIGNED, DATED AND DELIVERED THIS 30TH DAY OF JULY 2018, IN OPEN COURT.

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C. KARIUKI

JUDGE