Parkash Juttla v CFC Stanbic Bank Limited & Selbourne Apartments (Investment Limited) [2019] KEHC 12414 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & ADMIRALTY DIVISION

CIVIL CASE NO. 116 OF 2018

PARKASH JUTTLA ...................................................................... PLAINTIFF

VERSUS

CFC STANBIC BANK LIMITED ………........................... 1ST DEFENDANT

SELBOURNE APARTMENTS

(INVESTMENT LIMITED) ……..………...………………2ND DEFENDANT

RULING

1. There is a contest as to whether or not the Notice required by Section 96(1) of the Land Act was duly served on the Plaintiff herein.

2. It was agreed by consent of Counsel that the process server who purportedly served the Notice be cross-examined.  This happed on 1st August, 2019.  Mr. Omondi George Pongo was confident until the point when he was confronted that the Plaintiff is sick and immobilized and could not have left her house to the gate to receive service.  At this point he sought to explain that the Plaintiff walked to the gate under the support of the Guard.  This  was a change from his earlier testimony that:

“She came alone accompanied by the Guard”.

The process server who was remarkably descriptive and dramatic in his testimony had earlier described the Plaintiff.  I would be surprised that he was unable in the first instance to remember that the Plaintiff needed support to move from her house to the gate.

3. As to service of the Notice upon H. Kago & Co. Advocate all this court has is the letter of 27th May, 2019 from Walker Kontos Houses to H. Kago & Co. Advocates and the response thereto of 3rd May, 2019.  The letter does not unequivocally acknowledge receipt of the Notice itself. Given that what is before me is word of the Counsel against the other.  I am unable to hold that indeed the letter of 27th May, 2019 also forwarded the Notice.

4. While I appreciate that the Plaintiff is only an occupant and not the chargor, Section 96(2) requires an occupant such as the Plaintiff to be duly served with Notice.  If no proper Notice is served then there is no compliance with the Provisions of Section 96(2).

5. For that reason auction due for tomorrow (6th August, 2019) is hereby stopped/injuncted.

6. Nevertheless the Bank still be entitled to press on with its statutory rights upon proper service of Notice under the provisions of Section 96(2) of The Lands Act.  As the firm of H. Kago & Co. Advocates confirm instructions to receive Notice on behalf of the Plaintiff, the Bank is at liberty to service the Notice on the said firm.  But I leave this to the wisdom of the Bank.

7. Only to that extent that the Notice of Motion dated 10th July, 2019 succeeds.  Costs in the cause.

Dated, Signed and Delivered in Court at Nairobi this 5th Day of August, 2019.

F. TUIYOTT

JUDGE

PRESENT;

Kago for Plaintiff

Ogunde for Defendant

Nixon – Court Assistant