Micheal Kimutai Ndiwa v National Housing Corporation & Muganda Wasulwa t/ a Keysian Auctioneers [2020] KEHC 211 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CIVIL CASE NO.5 OF 2020

MICHEAL KIMUTAI NDIWA...................................................................PLAINTIFF/APPLICANT

VERSES

NATIONAL HOUSING CORPORATION..................................1ST DEFENDANT /RESPONDENT

MUGANDA WASULWA T/ A KEYSIAN AUCTIONEERS......2ND DEFENDANT /RESPONDENT

RULING

1. The Notice of Motion application by the applicant dated 3rd June 2020 seeks temporary orders of injunction to restrain the defendants from selling by way of public auction his property comprised in land parcel number KITALE MUNICIPALITY BLOCK 11/179 pending the determination of this application and thereafter the main suit.

2. The applicant has also prayed that the 1st respondent does provide statement of the loan account to the applicant including the interest due on the payments.

3. The supporting affidavit of the applicant dated the same date indicates that he took a loan facility from the 1st respondent amounting to Kshs 3 million and he offered the aforementioned property as a security. He used the loan to build his bungalow on the said parcel of land.

4. The applicant stated that he has paid a substantial part of the loan before the advent of Covid 19 epidemic and that despite this the respondent has advertised the security for sale in total disregard of the amount he has substantially made. He accused the respondent of not serving him with the requisite notices and for failing to value the security. He went on to state that the property is his matrimonial home and he stands to suffer loss and damage should it be sold.

5. The respondents through the replying affidavit of one KENNEDY.K. MUNALA dated 20th July 2020 has given chronology of events from the date the applicant was advanced the loan. The annexures demonstrate that he was advanced the sum of Kshs 3 million   which he was to service from 1st March 2011 at a monthly instalment of Kshs. 71,000.

6. It appears that the applicant has paid some minimal amount and defaulted which necessitated the 1st respondent to instruct the 2nd respondent to advertise for sale the security offered by the applicant. The same was advertised for sale which necessitated the applicant to rush to this court and seek orders of injunction.

7. The averments contained in the replying affidavit have not been controverted by the applicant. The applicant for example has not denied that in an attempt to pay the loan he admitted the same and issued cheques payable to the 1st respondent which were dishonoured.

8. The applicant does not deny the fact that he did not honour the monthly repayment as proposed to the 1st respondent and that the total accumulated amount including the arrears is over Kshs 6 million.

9. This court does not find merit in the application for the simple reason that the applicant has not come to this court with clean hands. There is no evidence of the efforts to pay the loan and even when he tried he issued cheques knowing that there was no money in the account.

10. More importantly he has admitted the loan arrears and has made several proposals with the 1st defendant but has failed to honour the same. This court cannot be used as a conveyor belt. It cannot be used to rewrite the parties contract.

11. The allegation that he did not receive the notices is betrayed by the fact that after he saw the advertisement he went to plead for clemency from the 1st respondent and requested in writing to have the same be repaid by instalments which amount he did not even honour.

12. He who comes to equity must come with clean hands. He has failed to demonstrate that he is entitled to this courts protection. The best he can do is to negotiate with the respondent.

13. Even for arguments sake the property was to fall to the hammer unlawfully, the applicant has not demonstrated that the respondent cannot compensate him by way of damages. At the same time the applicant cannot use the novel Covid 19 pandemic as an excuse as it is clear that he had defaulted way back before this year.

14. In KENLEB CONS LTD VS. NEW GATITU SERVICE STATION LTD & ANOTHER (1990) e KLR, the court stated as follows.;

“To succeed in an application for injunction an applicant must not only make a full and frank disclosure of all relevant facts to the just determination of the application, but must also show he has a right, legal or equitable, which requires protection by injunction. He must also satisfy the three tests set out in the often cited case of Giella v Cassman Brown & Co Ltd, 1973 EA 358; for the grant of an interlocutory injunction”

15. For the above reasons, the applicant does not merit an injunction nor the statements he has requested for the reason that what is contained in the replying affidavit includes the account statements. The applicant has not rebutted. There is no evidence that he requested from the respondent for the said accounts and was denied.

16. The application is otherwise dismissed with costs to the respondents.

Dated at Kitale this 11th day of December 2020.

H K CHEMITEI

JUDGE