Francis Wisitsa Gyideya v Kenya Commercial Bank Ltd [2014] KEHC 5274 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT  CASE NO. 160 OF 2013

FRANCIS WISITSA GYIDEYA ..............................................................PLAINTIFF

VERSUS

KENYA COMMERCIAL BANK LTD................................................ DEFENDANT

RULING

1.       The Applicant in his notice of motion dated 5th June 2013 seeks orders from  this court for;

a.       That  this application be  certified as urgent and service there of be dispensed with in  the first instance.

b.       That this honourable court be pleased to temporarily restrain the Defendant, its servant, agents and or M/S Sadique Enterprise Auctioneersfrom auctioning and or  otherwise attempting to sell by public auction the Applicant's property land  parcel No. W. Bukusu/N. Myanga 274scheduled on 7. 6.2013 pending the hearing and determination of this application inter-parties.

c.       That  this honourable court be pleased to issue a permanent   injunction  restraining the Dependant, its servant, agents and orM/S   Sadique Enterprise Auctioneersfrom auctioning and or otherwise attempting to sell by public auction the Applicant's property land parcel No. West Bukusu/North Myanga/274pending the  hearing and determination  of the main suit or further orders of this court.

d.       That costs  of this application be provided.

2.       The motion is supported by the grounds on the  face of it and the   affidavit sworn by the Applicant.  The key ground raised is that before the suit property was advertised for sale, the Respondent did not  serve the statutory notices as provided  in law.  In the further affidavit  sworn  on 17th September 2013, the Applicant says his physical  address  is c/o Box 163 Tiriki and not 763 Bungoma.

3.       The Application is opposed and the Respondent has filed a  replying affidavit.   In the replying affidavit, the Respondent has deponed that  the Applicant was duly served with the requisite statutory notices   and the notification of sale (par 13, 14,15 and 17 of the replying  affidavit).

4.       The parties filed  written submissions as a mode of  arguing this motion. In the Applicant's submission in summary said, he was not served with   any notice   and only learnt of the sale through an  advert in the daily Nation newspaper of May 18, 2013 (annexed).  He submits that under Registered Land Act (Counsel referring to it without minding it is repealed) requires  a chargee to give the chargor 90 days statutory notice of sale and a further 45 days notification of sale.  He submitted that the purported statutory notices were sent to the wrong address i.e Box 763 Bungoma instead of 163 Tiriki.  He relied on case law of,

1.       Ceasar Kunguru vs. KCB Civ. Application  Nai. 101 of 2001

2.       Gitau Muiruri vs. Standard Chartered Bank (K) Ltd. Civ. case No. 424/04

5.       The Defendant's  submissions in summary stated that the necessary statutory notices of sale were duly served.  They referred to annextures no. 6, no. 7, no. 8 and no. 10 in their replying affidavit.That the Plaintiff failed to comply with notices hence the property was advertised for sale. In support of their submissions, they cited the following statutes & case law;

i.        Registered Land Act cap 300 (repealed)

ii.       Land Act No. 6 of 2012.

iii.      NBK Limited vs. Shimmers Plaza Limited [2009] e KLR

v.       St. Elizabeth Academy – Karen vs. HFCK CC 747 of 2012 (Milimani Commercial Court).

vi.      Nyanza Fish Processors Ltd. Vs. Barclay Bank (K) Ltd.  Nbi Civ.  Appeal No. 114   of  2009.

6.       I have considered the pleadings, submissions and case law relied  on by both parties.  To determine whether the Applicant has  shown a prima facie case with a probability of success, I will answer the question whether the requisite statutory notice was  duly served. The notices annexed were served on the Applicant through postal address of Box. 763 Bungoma.

7.       The Plaintiff has deponed that his address is 163 Tiriki. From the loan  documents (annex No-1, No.2, No. 3) none of the addresses appear. The Respondent has not  explained  how they arrived  at Box. 763 as        the     address of the Applicant.  It cannot be  conclusively decided that the   Applicant was properly served.  To this extent, the Applicant has a basis to challenge the sale that was put up in the daily Nation of 18th       May 2013.  The next issue is whether to grant the  injunction pending determination of  suit or  shorter as pleaded by the  Defendant.

8.       The Respondent urged the court  in their submission that should this  court be inclined to grant the orders sought, then the orders be granted on terms limited to the  extent when the proper notices will be       served and not pending determination of suit.  On this limb, they      have  cited NBK Vs. Shimmers Plaza Ltd.  At page 4 of that ruling, the           court of Appeal had this to say;

“An injunction is an  equitable and discretionary remedy. The duration of an order of injunction is at the sole  discretion of the trial Judge and depends on the circumstances of each case. In this case, the duration of the injunction until the determination of the suit frustrated  the  statutory  right of the bank to realize the security upon giving a  notice which complies with the law.  We  venture to say that where the court is inclined to  grant an interlocutory order restraining a mortgagee from exercising its statutory power of sale solely on the ground that the mortgagee has  not issued a valid notice, then in our view, the order of injunction  should  be limited in duration until  such time as the mortgagee shall  give a fresh statutory  notice in compliance with the law”.

9.       The Defendant also  in citing  St. Elizabeth Academy- Karen supra ,referred this court to  paragraph 34 where  quoting the court of appeal in Re: Daniel Kamau  Mugambi vs. HFCK said;

“A Plaintiff should not be granted an injunction if he does not have clean hands and no court of  equity will    aid a man to derive advantage from his own  wrong, for the Plaintiff seeks this court to protect him from his own default.  He who seeks  equity must do equity.”

The Applicant herein admits he is in default, paying the  loan advanced

10.     I am  persuaded by the above decisions  and I see no reason to depart  from them.  The Applicant herein  is entitled to injunction orders for failure  by the  Respondent to send the notices to a correct  address. However the Injunctive orders issued will be to the extent  restraining the  Defendant/Respondent from exercising  its power of    sale of land parcel No. W. Bukusu/N. Myanga/274 until proper statutory notices are served on the Applicant as provided under the Law.

11.     The application is thus allowed to the extent  stated above with costs of the application awarded to the Plaintiff/Applicant.

DATED, SIGNED and DELIVERED this   13th   day of   May  2014

A. OMOLLO

JUDGE.