Nancy Wanjiko Kingori v Kussco Limited & Intime Auctioneers [2019] KECPT 52 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.264 OF 2019

NANCY  WANJIKO  KINGORI.......................................................................CLAIMANT

VERSUS

KUSSCO LIMITED................................................................................1ST RESPONDENT

INTIME  AUCTIONEERS....................................................................2ND RESPONDENT

RULING

The Matter for determination is  a Notice of Motion  application  dated  4. 6.19 seeking  the following  orders:-

1.  Thatthis application  be certified  as urgent  and  service be dispensed  with in  the first  instance and heard  ex-parte  for reasons  of its urgency.

2.  Thatthe defendant  be and  are hereby  restrained  by a temporary  order of  injunction  from auctioning, selling,  disposing, evicting or  in any  other way  interfering  with the  plaintiff’s  use and occupation  of  all that parcel  of land  known  asCIS-MARA/OLOPITO/2336pending  the hearing  and  determination  of this application  interpartes.

3.  Thatthe defendant  be and  are hereby  restrained  by a permanent   order of  injunction  from auctioning, selling,  disposing, evicting or  in any  other way  interfering  with the  plaintiff’s  use and occupation  of  all that parcel  of land  known  as CIS-MARA/OLOPITO/2336 pending  the hearing  and  determination  of this suit.

4.  Thatthe costs of the  Auctioneer  be taxed  by this  honorable  court.

5.  That the  costs  of this  application  be provided  for.

Based  on the grounds  on the  face of the  application  supported  by an affidavit  of NANCY  WANJIKU  KING’ORI  the plaintiff/applicant.

The same is opposed vide the replying affidavit of GEORGE OTOTO filed on 27. 6.2019.

The application was canvassed by way of written submissions. The applicant filed their submissions on 27. 8.19 and submitted  that the  applicant  is the legal  proprietor  of land parcel  CIS MARA/OLOPITO/2326 and  has  been  a member of KUSCO LIMITED.

That she took a loan of Kshs.1million on 5. 6.2012 and used other land parcel as a security.

That she had been struggling with the repayments and is ready and willing to clear the loan arrears and interests.

That the defendant /respondent failed to serve the statutory notice to the applicant and advertised in the local dailies to sell the said land parcel by Public Auction.

They, therefore seek for injunctive orders against the respondent.  They have cited the authorities they wish to rely upon.  The respondent filed written submission on 7. 8.2019.  They have submitted that the loan was advanced to the claimant but she defaulted in repaying the loan and through a letter dated 5. 7.2016. Statutory notice was issued and served through registered notice.

That the claimant after receiving the served letter made payment of Kshs. 50,000/- on 28. 10. 2016, 25,000/- on 24. 2.2017, 50,000/- 0n 3. 3.2017 and 22. 6.2017, total Kshs. 439,850/-.

That after the lapse of 3 months’ notice, the respondent engaged the 2nd respondent auctioneers in exercise of its statutory powers of sale.

That the 2nd respondent advertised for public auction.

We have carefully considered the evidence on record and the submissions of the parties. Conditions for granting interlocutory injunction in GIELLA .VS. CASSMAN BROWN  AND CO. LTD (1973) E.A358 herein states;-

(1)    Prima facie case with probability of success.

(2)    Irreparable harm which cannot be compensated by award of damages.

(3)    Balance of convenience.

Prima facie case-

The applicant has submitted that she is the legal and beneficial owner as evidence by the title deed used as evidence hence she has a genuine and arguable case. On the other hand, the respondent argues that indeed she is indebted to the respondent and that the 1st respondent was exercising his power of sell.

That the applicant was full aware of the charge registered against her property and the consequence of default.  The applicant had also argued that she will suffer irreparable lose that cannot be compensated by an award in damages since the suit property is her matrimonial home and sell of the land parcel will cause untold suffering to whole family and this cannot be compensated by an award in damages. The respondent has argued that the claimant can be compensated by an award of damages if the injunction is not issued.

In the balance of convenience, the applicant submitted the statutory notice was issued a month after drafting and she was not given the necessary 45 days to recover the charged property.

That she has been making monthly repayment thus the statutory notice was not in good faith.

The Respondent submitted that the balance of convenience does not favour the applicant since this was a security for a loan and the respondent is entitled to recover their money loaned to the claimant through a valid legally executed contract between them. That the application should therefore be dismissed since it has not established all the  conditions.

We have carefully  considered  the submissions of the parties  and we note that  this  is a matrimonial  home  of the claimant  and she  is willing  to  repay  the loan therefore  if the said  land is  sold  then it will  be prejudicial  to the whole  suit  since  the claimant  has made  some payment and  it  has not been  established  how much  is owing to date.

We  therefore  find as follows that  the claimant  has established  a prima  facie  case  and may suffer  irreparable  harm  that cannot  be compensated  by  an award in damages  if the suit  property  is sold.

The balance of convenience tilts in her favor since she has demonstrated the willingness to pay and if the interlocutory injunction is not issued then the family is likely to lose their home. We therefore find that the application dated 4. 6.19 has merits and is granted in terms of prayer 2 and 3.  For prayer 4, it is not clear what is being taxed as the auctioneers cost hence this prayer is accordingly dismissed since  it has  no merits

On prayer, 5 costs in the cause.  Parties to fix the matter for directions.

Read and delivered in open court, this7th 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