Gervasio Kalonzo v Boniface Mwenda & Family Bank [2017] KEHC 6918 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

E& L CASE NO 192  OF 2016

GERVASIO KALONZO....................................PLAINTIFF

VERSUS

BONIFACE MWENDA ….....................1ST DEFENDANT

FAMILY BANK.......................................2ND DEFENDANT

R U L I N G

1. This Notice of Motion dated 27th September, 2016 seeks the following orders:-

(1)THAT this Honourable Court be pleased to certify this application is  urgent and the same  be heard ex-parte in the first instance.

(2) THAT this Honourable Court be pleased to issue temporary orders of injunction restraining the 2nd Defendant either by itself, employees, agents and/or any other person working under its instructions from attaching and/or selling by a public auction the Plaintiff  properties known as plot number NANYUKI MARURA BLOCK  1/207 (ICHUGA) pending hearing and  determination  of this application inter-partes and/or until further orders of the Court.

(3) THAT this Honourable Court be pleased  to issue temporary orders of injunction restraining  the 2nd defendant either by itself, employees, agents and/or any other person working under it's  instruction from attracting and/or selling by a public auction the Plaintiff  properties known as plot number NANYUKI MARURA BLOCK 1 /207 (ICHUGA)pending hearing and determination of the suit.

(4) Cost of this application be provided for.

2. The grounds in support of the application are:-

(1) Sometimes  on 10/09/2015 the Plaintiff surrendered to the 2nd defendant  title deed number NANYUKI MARURA BLOCK 1/207 (ICHUGA)to secure money advanced to the 1st defendant.

(2) Immediately upon the surrender of the said title deed the 1st defendant had been extended a financial accommodation to the tune of Kshs. 2,000,000 by the 2nd defendant which inter-alia deals with leading loans in Kenya and that the aforementioned financial accommodation was to be settled by monthly installments.

(3) That the Plaintiff further avers that the 1st defendant has been paying all the monthly installments when they become due and current outstanding balance remains at Kshs.  394,863. 71.

(4) On / or about 22/08/2016 the 2nd defendant issued a statutory demand notice in respect of legal charge over suit land in default of paying of the above balance by the 1st defendant.

(5) THAT the 2nd defendant action of threats  against me is wrongful and the same should not be allowed.

(6) The Defendants' actions are illegal and inimical to good order in the society and/ or conduct of business relationship unless  restrained the plaintiff  shall be rendered destitute and homeless.

3. Applicant has also filed a Supporting Affidavit where he has deponed has follows:-

(1) THAT I am Plaintiff herein therefore competent to swear this Affidavit.

(2) THAT Sometimes on 10/09/2015 I surrendered  to the 2nd Defendant title deed number  NANYUKI MARURA BLOCK 1/207 (ICHUNGA) to secure money advanced to the 1st defendant branch office Nkubu.

(3) THAT immediately upon the surrender of the said  title deed the 1st defendant  had been extended a financial accommodation the the tune of Kshs. 2,000,000 by the 2nd defendant which inter-alia deals with leading loans in Kenya and that the aforementioned financial accommodation was to be settled by monthly installments.

(4) THAT the 1st defendant has been paying all the monthly installment when they become due and current outstanding balance remains at  Kshs. 394,863. 71.

(5) THAT on/or about 22/08/2016 the 2nd defendant  issued a statutory demand notice in respect of legal charge over suit land in default of paying of the above balance by the 1st defendant.

(6) THAT the 2nd defendant actions of threats against me is wrongful and the same should not be allowed.

(7) THAT the defendants' actions are illegal and inimical to good order in the society and/or conduct of business relationship unless restrained the Plaintiff shall be rendered destitute and homeless.

(8) THAT since I have paying all monthly installments to date and its imperative the defendant be  restrained by an order of the Court.

(9) THAT what is deponed herein above is true to the best of my knowledge, information and belief.

4. It appears that defendants have not filed any papers in respect of the Motion of 12:10:16 neither have defendants filed any pleadings so  far.

The Application of 27:09:16 is hence unopposed. I however note that the application was filed under a Certificate of Urgency which  means that applicant wanted the matter to be handled speedily.  After obtaining nterim Orders on 23: 11: 2016  applicant was not vigilant to ensure that the Respondent had been served by 05. 12. 16. As such, the Interim Injunctive Orders of 23”11: 16 were vacated on 05:12:16.

With this history, the Court proceeds to grant Orders as follows:-

(1) This Court hereby issues  temporary Orders of Injunction restraining the 2nd defendant either by itself, employees, agents and /or any other person  working under its instructions from attaching and or selling by Public Auction THE Plaintiffs properties NANYUKI/MARURA BLOCK 1 /207 (ICHUGA) for a period of 5 (five) months.

(2) Applicant is to move the Court to ensure  that  pleadings close, and  that pre- trial directions are take.

DELIVERED IN OPEN COURT AT MERU THIS 2ND DAY OF MARCH, 2017 IN THE PRESENCE OF:-

CA: Kananu

Mutunga h/b Mugambi Kiogora for Plaintiff

Defendants absent

L.N. MBUGUA

JUDGE