Cletus Nyongesa Wamalwa t/a Clean Farm v Co-operative Bank of Kenya [2010] KEHC 2839 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA

Civil Suit 152 of 2001

CLETUS NYONGESA WAMALWAt/a CLEAN FARM....................PLAINTIFF

~VRS~ CO-OPERATIVE BANK OFKENYA..........................................DEFENDANT RULING

This is a ruling on a preliminary objection by the Defendant dated23/6/2003. The objection was heard by Justice Mitey on10/7/2003. The ruling was not delivered as scheduled by the judgewho later retired.I have taken over this file for purpose of writing the ruling.

Mr. Makokha argued the objection on behalf of Ochieng, Onyango, Kibet and Ohaga advocatesfor the Defendant.He submitted that the suit and the application for injunction were compromised by the order recorded on18/6/2002before Justice A. Ringera.In thatorder, parties agreed to give the Plaintiff time to sell his security by private treaty and in default, the Defendant to exercise his statutory power of sale.The Plaintiff can not again revive the application for injunction orrevive the suit.

Mr. Lugalo for the Plaintiff submitted that the Defendant had not given the required statutory notice under section 74 of the Registered Land Act Cap 300. As such the Defendant cannot validly exercise its statutory power of sale.The consent order cannot therefore be implemented due to that failure to comply with the law.

I have perused the record and seen the consent order of the parties recorded on18/6/2002. It provided inter alia that, the Plaintiff be allowed 45 days within which to sell the charged property by private treaty and in default the Defendantbe at liberty to exercise its statutory power.The matter came for mention on31/7/2002when the parties indicated that there were negotiations by the parties to settle the matter out of court.The Plaintiff thereafter filed his application under certificate of urgency to restrain the Defendant to sell the land.It is against this application that the preliminary objection was raised.

It is rightly observed that the consent order is still in force and unless the parties set if aside by consent or in any other manner, the order remains in force.The court cannot entertain an application by the Plaintiff to restrain the Defendant from exercising its statutory power in accordance with the consent.It appears that the Plaintiff defaulted in selling the land by private treaty as agreed.The default clause has to be applied as per the consent order.

I therefore agree with the Defendant that by recording the consent order both parties compromised the suit.The application by the Plaintiff to restrain the Defendant can not be entertained at this stage since the consent order is still in force.

I therefore uphold the preliminary objection.

F. N. MUCHEMI

JUDGE

Dated, Delivered and Signed at Bungoma this 29thday of April, 2010.

In the presence of Mr. Makokha for Onyango Ohaga & Co. Advocates for Defendants .