Mc Tough & another v National Bank of Kenya Limited & another [2023] KEHC 25456 (KLR)

Mc Tough & another v National Bank of Kenya Limited & another (Commercial Case E003 of 2023) [2023] KEHC 25456 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25456 (KLR)

Republic of Kenya

In the High Court at Kisumu

Commercial Case E003 of 2023

RE Aburili, J

November 14, 2023

Between

James Michael Mc Tough

1st Plaintiff

Patricia Ann Mc Tough

2nd Plaintiff

and

National Bank Of Kenya Limited

1st Defendant

Collinet Auctioneers

2nd Defendant

Ruling

1. This short ruling determines the question of whether this court should grant any interim stay of sale of the Plaintiff’s property scheduled for sale on 15th November 2023 as advertised by the 1st Respondent.

2. I have heard the brief arguments by Mr. Bruce Odeny Advocate for the Applicant and the response by counsel for the Respondents, Mr. Tugee.

3. I have also perused the pleadings and the grounds of opposition and the annexed Ruling from the Court of Appeal videCivil Application No. E095 of 2023. I have particularly read paragraphs 31, 34 and 35 of the Court of Appeal Ruling dated 25th October 2023. It is clear to me that the Court of Appeal rendered itself on whether the sale of the charged property should go on or not and stated that the 1st Respondent Bank was at liberty to proceed with a new public auction following an advertisement of the sale without the need to serve new Statutory notices on the Applicants.

4. If the Applicants now have new and compelling evidence or material, nothing prevents them to approach the Court of Appeal for review of that Ruling or Orders.

5. There is no complaint regarding the advertisement and therefore this court would be sitting on appeal of the Court of Appeal orders if it was to grant another stay on account of the proposed amendments.

6. Accordingly, I decline to grant any stay orders and direct that the Respondent files the Replying affidavit within ten (10) days of today.

7. The Applicant is at liberty to file and serve a further affidavit within ten (10) days of service together with written submissions upon which the Respondents have ten (10) days to file and serve written submissions.

8. Mention before High Court 2 on 18th December 2023 to fix a Ruling date on the application dated 8th November 2023.

9. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 14TH DAY OF NOVEMBER, 2023R. E. ABURILIJUDGE