National Bank of Kenya v Catherine Njambi Thagichu & John T. Gakijna [2014] KEHC 34 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL SUIT NO. 561 OF 1994

NATIONAL BANK OF KENYA....................PLAINTIFF

VERSUS

CATHERINE NJAMBI THAGICHU....1ST DEFENDANT

JOHN T. GAKIJNA............................2ND DEFENDANT

RULING

1. By an Application dated 21st October 2013,   the Plaintiff   (Applicant) sought two main prayers, that-

(a)  the orders of injunction granted  by  the  Honourable  Court  on 11th November  1998 be lifted,

(b) directions on the attachment of motor vehicle registration No. KAA 943E which was never accounted for by Gulf Auctioneers be given to enable parties move forward,

2. The application was supported by the affidavit of the Plaintiffs Nakuru Branch Bank Officer,   Isaac Gachiri Gitau, sworn on 21st October   2013.  It was heard ex-parte in the first instance on 4th December 2013, certified as urgent and listed for inter-partes hearing on 6th December 2013.  The Applicant was directed by the court to serve the Defendants.

3. In the affidavit of Kamonjo Kiburi Counsel for the Plaintiff, sworn on 6th December, 2013, it is alleged that the Defendants' Firm of Advocates, M/s Karanja Mbugua & Company Advocates, was served with the application on 5th December 2013 which they accepted by stamping and signing on the front side.

4. I have considered the application and affidavit sworn in support thereof. The orders issued on 11th November 1998, which the Plaintiff seeks to be lifted in essence restrained it from selling or otherwise alienating the Defendants' parcels of land BAHATI/BAHATI BLOCK 1/1224, SOLAI/NDUNGIRI BLOCK 3/769 and 2/391 in satisfaction of the judgment for Kshs. 1,917,954. 30/= entered in favour of the Plaintiff against the Defendants herein pending the hearing and determination of this suit.

5. The  Plaintiff  has  nonetheless  acknowledged  that   the  said  sum  has already been satisfied partially through the sale of the Second Defendant's motor vehicle registration  number  KAA 943E. However, the proceeds  of the sale were not  accounted  for  by  Gulf Auctioneers  who  sold  the  same  on  behalf  of  the Plaintiff. It therefore seeks directions of the court in this regard.

6. Taking into account  the nature  of the dispute between  the parties and orders  sought  by the  Plaintiff, it is imperative  that  the  Defendants  be given a chance to be heard  before any orders can be issued on the way forward  by the court.  In the instant  case, I am  not satisfied  on the  evidence  of the  Return of Service by  the  Plaintiffs  Counsel  that  the  Defendants  were  served  with  the application  or  notified  of  the  hearing  date.  Whereas Counsel for the Plaintiff deposed that they served the Defendants' Firm of Advocates who accepted service, stamped and signed on the front page of the application, the affidavit of service filed herein does not bear out this fact as the page so stamped and signed has not been annexed thereto.

7. For the court to proceed and grant the orders sought in the absence of the Defendants it must be satisfied that they were aware of the application but nonetheless failed to file their responses. Having entertained doubt, I decline to grant the orders sought herein and direct the Applicant to serve the Defendants' Counsel with the application dated 2JS1 October 2013 afresh.  Hearing dates for the same shall be taken at the registry.

Dated, signed and delivered at Nakuru this 6th day of June, 2014

M J ANYARA EMUKULE

JUDGE