Isabella Nyambura Gitau v Consolidated Bank Of Kenya Limited & J.M. Kariuki T/A Jo-Mwaka Auctioneers [2016] KEHC 8552 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & ADMIRALTY DIVISION

CIVIL CASE NO. 87 OF 2016

ISABELLA NYAMBURA GITAU.………….….PLAINTIFF/APPLICANT

VERSUS

CONSOLIDATED BANK OF

KENYA LIMITED……………………..1ST DEFENDANT/RESPONDENT

J.M. KARIUKI t/a JO-MWAKA AUCTIONEERS…............2ND DEFENDANT/RESPONDENT

RULING

The Plaintiff/Applicant, Isabella Nyambura Gitau, approached the Court under a certificate of urgency, seeking orders that the Court be pleased to grant a temporary injunction restraining the Defendants/Respondents from selling her property known as LR NO. NGONG/NGONG 51924 (Original Number 14890) in Ongata Rongai, Kajiado County, pending the hearing and determination of the application dated 23rd March, 2016. The application was filed pursuant to Sections 1A, 1B, 2, 3A and 63 (c) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and is premised on the affidavit of the Plaintiff/Applicant annexed thereto.

It is the Plaintiff’s case that sometime in 2011, she obtained a loan from the 1st Defendant against her title for the suit property, and that although there were instances when she was unable to keep up with the payment of the monthly instalments, she made arrangements with the 1st Defendant to pay and did make some lumpsum payments in 2014 amounting to about Kshs 3. 9 million that substantially reduced the debt. She was thus perturbed to learn, on or about 18th March, 2016 from a friend who works for the 1st Defendant,  that her property was in the process of being offered for sale.

The Plaintiff further averred that she visited the bank to follow up on the report and was served with two letters dated 27th September, 2013 and 5th February, 2016 respectively, the latter of which purported to provide her with 45 days redemption notice ending on 21st March, 2016. She deponed that despite her best efforts, the 1st Defendant has insisted on having the property auctioned unless the outstanding amount was paid.

The application proceeded exparte after the Court was satisfied that service was effected on the Defendants. The Plaintiff has demonstrated that she was served with a 45 day notice that lapsed on 21st March, 2016 and that the threat of sale is real. Accordingly, I would grant prayer (2) of the Notice of Motion dated 23rd March, 2016 pending the hearing and determination of that application.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS  1ST  DAY OF APRIL, 2016.

OLGA SEWE

JUDGE