Joseph Gikunda Kiara v Rafiki Microfinance Bank Limited & Antique Auctioneers [2017] KEHC 2204 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 28 OF 2017

DR. JOSEPH GIKUNDA KIARA ..................................PLAINTIFF

VERSUS

RAFIKI MICROFINANCE BANK LIMITED .........1ST DEFENDANT

ANTIQUE AUCTIONEERS..................................2ND DEFENDANT

RULING

1. In the Application dated 7th February, 2017, the Plaintiff is seeking for the following orders:

a. That pending hearing and determination of this Application and/or suit, the Defendants whether by themselves, their agents, their servants, their assigns, and/or anyone acting on their instructions be stopped by way of an interim injunction from entering into, trespassing, selling, advertising for sale, alienating, and/or interfering in any way with the Plaintiff’s peaceful possession and enjoyment of all that parcel of land together with the improvements therein known as L.R. No. 12715/12184, Syokimau Estate.

b. That pending hearing and determination of this Application and/or suit this Honourable Court inhibits the registration of any dealing with all that parcel of land together with the improvements therein known as L.R. No. 12715/12184, Syokimau Estate.

c. That costs of this Application be borne by the Defendants.

2. The Application is premised on the grounds that the Plaintiff took a loan facility with the 1st Defendant; that the said loan facility was secured vide a charge on the Plaintiff’s land known as L.R. No. 12715/12184, Syokimau Estate and that the Plaintiff has been servicing the said loan.

3. In his Affidavit, the Plaintiff deponed that in November, 2016, he held negotiations with the 1st Defendant’s Branch Manager and agreed that instead of him paying Kshs. 149,338 per month, he should pay Kshs. 120,000 per month and that as at 19th January, 2017, he was assured that his account was not in arrears.

4. The Plaintiff has deponed that on 30th January, 2017, he was shocked when he learnt that his house had been advertised for Sale by public auction; that the auction was scheduled for 15th February, 2017 and that when he went through the bank statement that he was given, he realised that there were many debits including penalties, legal fees and collection charges.

5. The Plaintiff finally deponed that the 1st Defendant ought to have served him with the statutory notice and that he is keen on continuing to service the loan.

6. In response, the 1st Defendant’s Debt Recovery Officer deponed that the Plaintiff has been defaulting in the loan repayment as shown in the demand letter of 12th February, 2016; that as at 11th May, 2016, the loan stood at Kshs. 8,082,740. 70 and that prior to the advertisement, the Plaintiff had been served with the statutory notices dated 30th June, 2016 and 11th October, 2016.

7. The 1st Defendant’s Debt Recovery Officer stated that the Plaintiff was served with the forty five (45) days redemption notice by the 2nd Defendant on 5th December, 2016 and that it is untrue that the Plaintiff has been servicing his loan.

8. The 1st Defendant’s officer finally deponed that the Plaintiff agreed to repay the loan in 120 monthly installments inclusive of interest; that having failed to honour his obligations, the statutory power of sale has crystallized and that the Plaintiff has not established a prima facie case with chances of success.

9. In his Further Affidavit, the Plaintiff deponed that he never received the demand letter of 12th February, 2016 and that the statutory notices that have been exhibited by the 1st Defendant were never served on him and that in any event, the said notices are faulty.

10. The Plaintiff deponed that under Section 96(3) (c) of the Land Act, the notification of sale should have been served upon the spouse who signed the Affidavit of consent and that some of the charges in the bank statement are illegal.

11. The Plaintiff’s advocate did not file submissions.

12. The Defendants’ advocate filed submissions which I have considered.

13. It is not in dispute that the Plaintiff charged the suit land to secure a loan facility of Kshs. 8,000,000 from the 1st Defendant.

14. It is not also in dispute that the Plaintiff defaulted in servicing the loan pursuant to the terms of the letter of offer and the charge.

15. The Plaintiff has not denied that he was supposed to have paid the principal amount and the interest within 120 days.

16. Considering that from the bank statement annexed on the Plaintiff’s Affidavit, the Plaintiff owed the 1st Defendant Kshs. 8,373,267. 08 as at 6th February, 2017, and in the absence of evidence to show that the interest and penalties charged by the 1st Defendant did not form part of the charges that were agreed upon, I find that the Plaintiff indeed still owes the 1st Defendant Kshs. 8,373,267. 08.

17. The 1st Defendant has exhibited the Demand letter dated 12th February, 2016 and the Statutory notices dated 15th June, 2016 and 30th June, 2016 in which the Plaintiff was notified that he should pay the entire balance of the loan facility within the requisite period of three (3) months.

18. The said statutory notices were sent by registered post to the address which belongs to the Plaintiff.

19. The Plaintiff has not pointed out the law that obligates the 1st Defendant to serve on a spouse a statutory notice before the statutory power of sale can arise.

20. Considering that the Plaintiff has not denied that the address shown in the statutory notices is his, I am satisfied that the Plaintiff was indeed served with the said notices by way of registered mail.

21. In the circumstances, I find that the Plaintiff has failed to establish a prima facie case with chances of success.

22. Having known all along that the suit property will be sold by way of public auction if he defaults in repaying the loan, the issue of the Plaintiff suffering irreparable damages that cannot be compensated does not arise.

23. For those reasons, I dismiss the Application dated 7th February, 2017 with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF NOVEMBER, 2017.

O.A. ANGOTE

JUDGE