Erick Kimingichi Wapangana t/a Magharibi Machinaries v Equity Bank Limited & Antique Auctioneers Agencies [2017] KEHC 2853 (KLR)

REPUBLIC OF KENYA.

IN HIGH COURT OF KENYA AT BUNGOMA.

CIVIL SUIT NO. 91 OF 2011.

ERICK KIMINGICHI WAPANGANA T/A MAGHARIBI MACHINARIES.....PLAINTIFF

VERSUS.

EQUITY BANK LIMITED…………...............................................…1ST DEFENDANT

ANTIQUE AUCTIONEERS AGENCIES……...............................…2ND DEFENDANT

RULING.

[1] The applicant filed a notice of motion under Order 42 of the Civil Procedure Rules and under Sections 3 and 3A of the Civil Procedure Act.  He prays for a temporary stay of sale of suit parcels;

E. Bukusu/S. Kanduyi/13584

E. Bukusu/S. Nalondo/618

E. Bukusu/S. Nalondo/2741

Pending hearing inter partes of this application and pending the hearing of Civil Appeal No. 107 of 2016.

[2] The respondent filed grounds of opposition and averred that the plaintiffs had not shown sufficient and substantial loss they will suffer if the orders are not granted.  They argued that once property is used to secure financial accommodation, the same is ipso facto becomes commodity for sale by Public Auction in case of default.  Further they argued that the applicants have not offered any security for costs nor deposited any security in court.  They further argued that the application is resjudicatta since a similar application have been determined fully by this court.  They argue that this application is meant to deny the defendants from exercising their statutory power of sale that has crystalized.  That there is no basis for granting a stay as the courts cannot rewrite contracts on behalf of the parties.

[3] This suit was dismissed for want of prosecution on 26/10/2015.  A similar application was filed on 28th July 2016 under order 45 rule I(1) and (2) rule 3(a), order 40  1,2,3,4 and 6 and Sec 3A of the Civil Procedure Rules and article 159 of the constitution.  They sought injunctive orders that had expired on 11/10/2015 preventing sale E. Bukusu/S. Kanduyi/13584, E. Bukusu/S. Nalondo/618 and E. Bukusu/S. Nalondo/2741 be reinstated pending the hearing of that application.  I made a ruling that the injunctive orders ceased to exist, they had been extinguished by operation of law.  I also stated that once the suit is dismissed under order 17(2) the court becomes functus official.  I also stated that the applicant having borrowed 7. 8 million from the respondent failed to show the efforts he had made to repay the debt.  That position persists in this application since I made that ruling on 27/9/2016.  Nothing has changed.  I find this application unmerited.  No suit is pending herein.  In my view there is nothing to prevent the 1st respondent from exercising its power of sale.

The application is not merited and the same is dismissed with costs.

Ruling read in Open Court in the presence of Counsels.

Dated at Bungoma this  4thday of  October,  2017.

S. MUKUNYA

JUDGE

In the presence of:

Court Assistants:   Chemutai/Joy

Miss Wanjala for Makokha for the defendant/respondent

Mr. Murunga for Mr. Ngira for the applicants