Joseph Njuguna Kaguai & Modern Oil Processors Ltd v Amica Savings & Credit Ltd & Keysian Auctioneers [2019] KECPT 41 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 329 OF 2019

JOSEPH NJUGUNA KAGUAI.................................................1ST PLAINTIFF/APPLICANT

MODERN OIL PROCESSORS LTD.......................................2ND PLAINTIFF/APPLICANT

VERSUS

AMICA SAVINGS & CREDIT LTD.................................1ST DEFENDANT/RESPONDENT

KEYSIAN AUCTIONEERS.............................................2ND DEFENDANT/RESPONDENT

RULING

The matter for determination in Notice of Motion application dated 14. 6.2019 seeking the following orders;-

1. Spent

2. Spent

3. This Honourable Tribunal be pleased to grant an order of Injunction restraining the Respondents, their servants, Officers, employees, assigns and/or agents or any other person acting for and/or on their behalf, from advertising for sale, disposing off, alienating, dealing with, selling by public auction and/or otherwise howsoever at any other time from or by completing by conveyance or transfer of any sale concluded by auction and/or private treaty or leasing, letting or otherwise howsoever interfering with the ownership of title to and/or interest in ALL THAT property known as Title No. MAKUYU/KIMORORI/BLOCK IV/1549 pending the hearing and determination of the entire suit.

4. This Honourable Tribunal do issue an order directing the 1st respondent to render and deliver to the Applicants true, accurate and correct accounts and the entire statement of account of account for the applicant’s current and loan account.

5. This Honorable Tribunal do issue an order restraining the 1st respondent from listing the applicants at the credit reference bureau.

6. The costs of this application be borne by the respondents.

Based on the grounds on the face of the application and supported by an affidavit of JOSEPH NJUGUNA KAGUI the 1st plaintiff /applicant.

The same is opposed by the replying affidavit of PIUS HIIRA filed on 23. 7.2019.

The application was canvassed by way of written submissions.  The applicant filed their written submissions on 22. 8.2019 submitted that the  1st applicant is the lawful and registered owner of the suit property and they obtained a loan facility and allegedly used the land parcel MAKOYO KAMORORI/BLOCK IV/1549.

That the 1st respondent intends to sell the land parcel in exercise of its statutory power of sell which is not due and is in breach of statutes which require notices be issued.

That this demonstrates a prima facie case since a right may be infringed by the sale.

That damages is not sufficient since land is unique in nature and one parcel cannot be equiated in value to another.

That the applicants have met the required threshold as set out in GIELLA .VS. CASSMAN BROWN(1973) EA 358.

That the respondents need to render true accounts since the amount claimed is disputed and unless the 1st respondent renders a true account of the loan, there will be injustice rendered as held in DAVID NGUGI NGAARI .VS. KCB (2015) eKLR .

They, therefore pray for application to be granted as prayed.  The respondent filed their written submission on 14. 8.2019 submitted that the claimants were members of the 1st respondent and that they sought and were advanced a loan facility of Kshs. 50 million in 2017 and they offered the said land as security.

That later Kshs.12 million was disbursed into the 2nd claimants account and the claimants were to pay in monthly installments of Kshs. 1,469,165/.

That the 1st claimants accepted the condition to bank with the 1st respondent all incomes available in their business.

That the claimants refused to pay the said loan amount which accrued with interest up to Kshs. 76,023,087/10.   That these arrears is 602 days of members money.

That it is not true that the claimant have been repaying the amounts.

We have carefully considered the submissions of the parties and the evidence on record and find that it is not disputed that the claimants are indebted to the respondents. What is in dispute is the amount owed.  We also note that the 1st respondent advertised the sale of the property.

We have noted the issues raised in the application as well as in the written submission.  We note that some of this issues should be determined by way of evidence hence at this point we will determine the merits in the application for issuance of injunctive orders and the taking of accounts.

The claimants have established ownership of the land parcel and that if the said land parcel is to be sold by way of public auction would occasion irreparable harm which cannot be compensated by an award of damages.

We note that the amounts owed are disputed and despite the fact that the claimant admits indebtness, they have a submitted willingness to repay hence exercise of statutory power of sale may not be a good option in the 1st instance.

This is because the claimant has also disputed the validity of the charge instrument in exercise of the statutory power of sale.

The claimants have also disputed the increase of interest rate unilaterally we find that these are issues which can be determined in the main suit.

In order to preserve the suit property in the interest of justice, we find that the claimant has established the threshold required in issuance of injunctive orders in terms of prayers 2 & 3.

On prayer 4 we find that it is important to establish the amount owed and we grant the same.

For prayer 5 the same is granted pending the hearing and determination of the main suit.

Costs in the cause.

Read and delivered in an open court this  7th day of November 2019

In the presence of ;-

Claimant:None-appearance

Respondent:None-appearance

Court Assistant:Leweri and Buluma

B. Kimemia  -        Chairman -signed

R. Mwambura     -        Member -signed

P. Swanya          -        Member -signed