Karanja v Equity Bank Kenya Limited & another [2022] KEHC 12960 (KLR)

Karanja v Equity Bank Kenya Limited & another (Civil Suit E664 of 2021) [2022] KEHC 12960 (KLR) (Commercial and Tax) (9 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12960 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit E664 of 2021

A Mabeya, J

September 9, 2022

Between

Ndirangu Karanja

Plaintiff

and

Equity Bank Kenya Limited

1st Defendant

Northern Auctioneers

2nd Defendant

Ruling

1. Before court is an application dated July 30, 2021. It was brought under sections 103, 104 and 105 of the Land Act, section 93 of the Land Registration Act, sections 1A, 1B and 3A of the Civil Procedure Act and order 40 rules 1, 2, 3 and 4 of the Civil Procedure Rules.

2. The application sought to restrain the defendants from advertising for sale or selling by auction or transferring or alienating the property known as title No Kabete/Mwimuto/T 48 (“the suit property”) pending the determination of the suit.

3. The grounds thereof were on the face motion and the supporting affidavit of the plaintiff sworn on June 30, 2021. These were that the plaintiff was the proprietor of the suit property. In 2013, he had guaranteed two loans totaling to Kshs 35,000,000/=. The 1st defendant had advanced one Keziah Wambui Ndirangu, the plaintiff’s daughter, the said sum whereby the plaintiff gave the suit property as security.

4. That despite the borrower paying the full loan amount, the 1st defendant had scheduled a public auction to be held on September 1, 2021. That the same was irregular as the plaintiff had not been served with the requisite mandatory notices. That the 1st defendant claimed to have advanced a further Kshs 38,000,000/= which the plaintiff did not guarantee and which the borrower had denied obtaining.

5. That the dispute in respect to the sum owing was the subject matter in HCC No civil suit No E440 of 2020 Keziah Wambui Ndirangu v Equity Bank (Kenya) Limited. In that suit, the court had ordered vide a ruling dated July 1, 2021, that full accounts be taken by the deputy registrar. That the intended exercise of statutory power of sale was therefore premature. That the plaintiff still had a chance to redeem the suit property if the deputy registrar found that the loan was fully serviced.

6. The defendant did not respond to the application despite being duly served. None of the parties filed their submissions as directed by the court on July 26, 2021.

7. The court has considered the pleadings and evidence before it. The simple task for this court is to establish whether the application has met the grounds for granting of injunctive orders.

8. The conditions for consideration in granting an injunction are as set out in Giella v Cassman Brown & Company Limited (1973) E A 358. These are that a prima facie case with a probability of success be established, that the applicant will suffer loss that cannot be compensated by an award of damages and that if in doubt, the court do determine the matter on a balance of convenience.

9. On a prima facie case with probability of success, the applicant contended that the respondents intended to sell the suit property without serving the requisite notices upon him as a guarantor. He produced a notification of sale to that end. He also pleaded that the amount for which the property was givenb as security had been fully paid.,

10. There was no answer or response to those averments made on oath. As the case stands, those averments remain unchallenged and to be taken to be true. The plaintiff has established a prima facie case with a probability of success.

11. Should the applicant’s property be irregularly sold, the applicant stands to suffer irreparable harm as he would have unjustly lost his right to property. It is in the best interest of justice to preserve the suit property until the suit is determined on merit.

12. The applicant averred that the dispute on the sum owing was an issue before HCC No civil suit No E440 of 2020 Keziah Wambui Ndirangu v Equity Bank (Kenya) Limited, though this contention was unsupported, if at all those facts are true, it would be imperative to preserve the suit property until the determination therein is made.

13. In the end, the application is found to be merited and is allowed with costs to the applicant.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF SEPTEMBER, 2022. A. MABEYA, FCIArbJUDGE