Highgrove Holding Limited v I &M Bank Limited & Garam Investments Limited [2021] KEHC 12730 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND TAX DIVISION

HCCC NO. E110 OF 2019

HIGHGROVE HOLDING LIMITED..................................................PLAINTIFF

-VERSUS-

I &M BANK LIMITED................................................................1ST DEFENDANT

GARAM INVESTMENTS LIMITED.......................................2ND DEFENDANT

RULING

1. Through the Notice of Motion dated 24th November 2020, the applicants/defendants seek the following orders: -

1. The plaintiff’s plaint dated 30th April 2019 be struck out.

2. Costs of this application and the entire suit be borne by the plaintiff.

2. The application is supported by the affidavit of the 1st defendant’s Legal Manager Mr. Andrew Muchina and is premised on the grounds that: -

a) The plaintiff duly executed the legal charge documents as particularized herein above for the entire debt and can only be lawfully discharged upon settlement of the entire debt-up to the limit of its liabilities with accrued interest and costs.

b) That bank is lawfully entitled to proceed with the realization of the charged properties to recover the outstanding debt.

c) A party that pollutes the river of equity does not deserve any injunctive relief.

d) The plaintiff has not established the test in Giella v Cassman Brown.

e) Once property has been offered as security it becomes a commodity for sale in the event of default.

f) Default having been admitted; the bank should be allowed to exercise its statutory power of sale.

g) A dispute to the amount owing is not a ground for grant of an injunction.

h) This honourable court cannot interfere with the bank’s right to exercise its statutory power of sale in view of the plaintiff’s blatant material non-disclosure and admission of default.

3. The respondent did not oppose the application despite service with the pleadings and when the matter came up for hearing on 11th March 2021, Mr. Gichuhi, learned counsel for the applicants urged the court to allow the application. Mr. Gichuhi also informed the court that the plaintiff’s suit is already spent following the selling of the charged property.

4. I have perused the various affidavits of service filed by the applicants herein especially the affidavit of service dated 21st January 2021 indicating that the respondent’s advocates, MS ONE & Associates Advocates was served with the hearing notice dated 21st January 2021 for the hearing slated for 11th March 2021.

5. I am satisfied that the respondent was properly served with the hearing notice and in the absence of any opposition to the application dated 24th November 2020, I allow the said application as prayed.

Dated, signed and delivered via Microsoft Teams at Nairobi this 18th day of March 2021in view of the declaration of measures restricting court operations due to Covid -19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on the 17th April 2020.

W. A. OKWANY

JUDGE

In the presence of:

Ms Leah Muhia for the defendants.

No appearance for the plaintiff.

Court Assistant: Sylvia.