BENSON KORONGO LUGASIRI v JAPHETH OGENDO OWUOR & KENYA COMMERCIAL BANK LTD [2010] KEHC 1510 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET

Civil Case 63 of 2006

BENSON KORONGO LUGASIRI……………………PLAINTIFF

-VERSUS-

DR. JAPHETH OGENDO OWUOR………………...1ST DEFENDANT

KENYA COMMERCIAL BANK LTD ………………..2NDDEFENDANT

R U L I N G

Application for InjunctionDated 24th May 2006

I.Background

1. This is a Commercial Law Case.The Kenya Commercial Bank (herein referred to as the Bankand 2nd Defendant herein) are in the process of wishing to sell land parcel LR/ Kakamega/Sergoit/12 Comprising of 10 acresthat is allegedly said to belong to the Plaintiff (Benson Korongo Lugwiri) (herein referred to as the Applicant)

2. According to the Applicant he wishes to have orders ofinjunction restraining the Bank from selling the said property the grounds being that he had, on the 6th July 2002 boughtthe said parcel of land from Dr. Japheth Ogendo Owuor (herein referred to as the 2nd Defendant) for Kshs 700,000/=.He holdsgood title and does not know why the 2nd Defendant intends to sell the land.To this end, the Applicant filed a case in the Chief Magistrate’s Court at Eldoret

CMCC No. 414/2006 (which this Court has not seen or perused) but which the applicant withdrew and filed the current Court case in this High Court.

3. The Applicant’s main prayer in the Court suit is that of a permanent injunction to restrain the bank from selling his parcel of land.On the same day filing suit he filed an application for an injunction under certificate of urgency dated 24th May 2006 seeking temporary orders of injunction.

II.Delay

4. The application wasfirst in Court exparte on 29th May 2006 (Gacheche J) and was orderedto be served and heard interparte

on 14th June 2006.

It was stood over generally by consent.

On 24th January 2009parties needed more time

adjourned (Court 1)

26thMarch 2007matters not reached (Court 1)

8th May 2007Hon Judges disqualify himself (Court 1)

8th May 2007 Parties needed more time (Bauni J)

31st October 2007 matters not reached (Bauni J)

11th December 2002 matter listed in the wrong Court (Ibrahim J)

4th March 2008 Stood over generally (Bauni J)

26th November 2008 orders that file be heard in High Court No. II (court 2)

18th November 2009File not taken to Court

13thMay 2009 New dates taken service not done (Mwilu J)

4th November 2009 Adjournment granted toAdvocate as clients want to be present (Mwilu J)

Hearing 19th May 2010 Interparte hearing under Order IXb r 3(a) Civil Procedure Rules

5. The delay is regretted

III.Application 24th May 2006

6. On the day the application came up for hearing on 19th May, 2010,the Respondent did not attend Court althoughthey were duly served.The hearing proceededexparte under Order

IX b r 3(a) Civil Procedure Rules.

7. The argument put forward by the applicant is that he paid the full purchase price for the parcel of land in question.Thecourt shouldtherefore issue him with an injunction to restrain the Bank from selling his parcel of land that he spent quite a considerable amount of time to develop.He prayed an injunction to issue pending the hearing of the application and of the main suit.

8. A sale agreement between the 1st Defendant and 3rd parties was annexed to the application together with a Land Certificate in the name of the 1st Defendant dated the 23rd November 2005, no transfer having taken place, the Plaintiff registeredas a purchaser interest and placed a Caution on the parcel of land.

9. He also produced as an annextureto his application a notice of sale of the property by the auctioneers on behalf of the Kenya Commercial Bank, and its notification as of 4th March 2006.

IV.On Reply

10. By the Defendant No. 1, that the agreement was breached and was non existence

11. A reply to thisapplication was also filed by the 2nd Defendant.Theexplanation to the whole matter was given on the 23rd October 2006 whereby the 1st Defendant had borrowedKshs 1,023,000/= from the Kenya CommercialFinance Company Limited.Theland parcel was charged to the said Company sometime in the early 1990 being the said land parcel Kakamega/Sergoit/12.

12. On the 2nd October 2001, the 2nd Defendant Bank took over all the liabilities of the said company being gazette notice 7045 dated 2nd October 2001. The Bank therefore had a right to sell the property to realize its loanto the 1st Defendant.The 1st Defendant filed HCCC No. 42/2006 at Kakamega High Court seeking for injunction which entitled to such injunction.After receiving the answer of the 2nd Defendant in their affidavit, he has not explained clearly whether he in fact wishes tomaintain his position on the property.

13. I hereby holdthat there is no grounds therein to issue an injunction.The Plaintiffmay have been placed in circumstances that may havebecome embarrassing. Theexplanation to this Court by the 2nd Defendant is accepted.

14. The application dated 24th May 2006 be and is hereby dismissed.Therewill be no coststo the 2nd and 1st Defendants as both were absent duringthe hearing.

DATED THIS26THDAY OFMAY2010 AT ELDORET.

M.A. ANG’AWA

JUDGE.

Advocate:

(i)Chemitei Advocate instructed by the firm ofM/s Chemitei &

Co. Advocate for the Plaintiff. - Absent

(ii)Yano Advocate instructed by the firm of M/s Yano &

Co. Advocate for the Respondent - Absent

(iii)Chemwok Advocate instructed from the Firm of M/s Chemwok

& Co. Advocate for the 1st Defendant- Absent