John Kayeli Olaka & another v National Bank of Kenya & another [2015] KEHC 4736 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CIVIL CASE NO. 5 OF 2015

JOHN KAYELI OLAKA…………………………………. 1ST PLAINTIFF

ALFRED ADAN OLAKA………………………………… 2ND PLAINTIFF

VERSUS

NATIONAL BANK OF KENYA …………………………1ST DEFENDANT

KEYSIAN AUCTIONEERS……………………………….2ND DEFENDANT

RULING

The auction sought to be stopped is scheduled for today at 11. 00 a.m. and follows a 45 day notice given by the 1stDefendant on 3rd March 2015.  This notice informs the Plaintiffs that the sale of Bukhayo/Mudika/3050 shall proceed unless they pay the sum of Kshs. 58,137,342/-

In what must be a reaction to that letter, the Plaintiff wrote to the 1st Defendant on 10th March 2015 admitting the debt and then made the plea,

“However, we write in respect of the above mentioned plot where the deceased children are residing who have no father or mother.  Kindly furnish us with the necessary information concerning this particular plot to enable us make arrangements of paying this particular    debt.”

The Plaintiffs now bring thisAction complaining that the bank has declined and/or neglected to render accounts of thedebt.  What accounts need to be rendered for an admitted debt?  is this not an afterthought by the Plaintiffs?

The issue of accounts being the only substantial issue raised in the Plaint, I am able to say, given the Plaintiffs’ admission of the debt, that it discloses a serious issue. It does not reveal a prima facie case with a likelihood of success. Being of thatpersuasion, I take the position that the Application dated 18th May 2015 seeking to injuct the intended auction does not pass muster. It fails the 1st test in Giella  vs Cassman Brown.

I dismiss it with cost.

F. TUITOTT

JUDGE

20/5/2015

DATED, SIGNED AND DELIVERED AT BUSIA THIS 20TH DAY OF MAY 2015.

IN THE PRESENCE OF:

OILE………………………………………………………..COURT CLERK

JUMBA FOR …………………………………………….APPLICANT/PLAINTIFF

BOKONGO FOR…………………………1ST DEFENDANT/2ND RESPONDENT