OSMAN SALEH ABDALLA V BARCLAYS BANK OF KENYA & GARAM INVESTMENT [2010] KEHC 2237 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

Civil Case 346 of 2009

OSMAN SALEH ABDALLA............................................PLAINTIFF

VERSUS

BARCLAYS BANK OF KENYA..........................1ST DEFENDANT

GARAM INVESTMENT......................................2ND DEFENDANT

RULING

On 5th November 1999 the plaintiff charged his property situate in Nakuru District and known as Title No. Nakuru/Rare/Gichogo/72 to the 1st defendant to secure a sum of Kshs.200,000/- advanced to him. Upon default in the repayment the 1st defendant served him with notice and instructed the 2nd defendant to sell the land to recover the balance of Kshs.323,992. 35outstanding as at 13th June 2009. On 15th December 2009 the plaintiff filed this suit and sought a permanent injunction to restrain the sale on the grounds that the 1st defendant has applied excessive interest to the amount due and is demanding Kshs.323,992. 35 and Kshs.647,209. 20 as the amounts outstanding. Contemporaneous with the filing of the suit he applied for an injunction under Order 39 Rules 1, 2, 3 and 9 of the Civil Procedure Rules on the same grounds.

In his replying affidavit, Allan Onyango, a Legal Officer with the 1st defendant averred that the sum of Kshs.647,209. 20 was a typographical error. The correct sum is Kshs.323,992. 35. He further stated that the defendant is clearly in default and his application should be dismissed with costs.

Having considered the matter I find that the 1st defendant made a typographical error in demanding a sum of Kshs.647,209. 20 instead of Kshs.323,992. 35. That error was in any case only in one of the 1st defendant’s letters. The statutory notice and the auctioneer’s demand letter had the correct figure.  Other than that error which has since been corrected, the plaintiff is clearly in default in the repayment of the amount due. In the circumstances I find no merit in the application and I accordingly dismiss it with costs.

DATED and DELIVERED this 2nd day of June, 2010.

D. K. MARAGA

JUDGE.