Stephen Muthaura v National Bank of Kenya Limited [2016] KEELC 859 (KLR)

REPUBLIC OF KENYA

IN THE  ENVIRONMENT AND LAND COURT OF KENYA AT MERU

CIVIL CASE NO 97 OF 2015

STEPHEN MUTHAURA …....................................................PLAINTIFF

VERSUS

NATIONAL BANK OF KENYA LIMITED..............................DEFENDANT

R U L I NG

This  application is dated 19th October, 2015 and seeks orders:-

1. THATthis application be certified urgent and be heard ex-parte in the first instance.

2. THATthe Honourable Court be pleased to issue an order of temporary injunction restraining the defendant whether by itself or its auctioneers, auctioneers agents or its servants or anyone else acting at its behest from selling, selling by auction and/or alienating parcel No. NYAKI/KITHOKA/2597 or in any other way dealing with the same pending  inter partes hearing of this application.

3. THATHonourable Court be pleased to issue an order of temporary injunction restraining the defendant whether by itself or its auctioneers, auctioneer's agents  or its servants or anyone  else acting at its behest from selling, selling by auction and/or alienating parcel  no. NYAKI/KITHOKA/2597 or in any other way dealing with the same pending the hearing and determination of this suit.

4. THATthe costs of this application be provided for:

The application is buttressed by the affidavit of the Plaintiff , Stephen Muthaura and, inter alia, has the following grounds:-

a. The Plaintiff is the registered proprietor of parcel  NO. NYAKI/KITHOKA/2597 and  had charged the same as security for the issuance of a financial facility  by the defendant.

b. The plaintiff has complied with repayment terms  of the facility and was quite surprised when the defendant issued a Public Auction notice and a statutory notice and also  failed to serve the same upon the Plaintiff.

c. The defendant is intent on selling  the above cited property without affording the Plaintiff his equitable right of redemption.

d. The defendant's home and further  extensive  developments lie on the said property.

The Supporting Affidavit  sworn on 19/10/2015  states as follows: -

1. THATI am the Plaintiff/Applicant herein fully versed with the facts that give rise to this application thereby competent to swear this affidavit.

2. THATin the year 2013, I obtained from the defendant, a financial facility of Kenya Shillings Seventeen Million, Six Hundred Thousand only (Kshs. 17,600,000) repayable within 10 years.

3. THATacting as security for the fore cited facility. I charged my land parcel No. NYAKI/KITHOKA/2597 and from then  on, I continued to repay the sums pursuant to the terms of the facility.

4. THATsometimes on or about 16th October 2015, I was at, my home when I was served with a Public Auction Notice  by LEGACY AUCTIONEERING SERVICES indicating  that my land would be subject  to sale on 3rd November, 2015. Annexed herewith and marked “SM1” is a copy of the said notice.

5. THATupon conducting swift investigations, I was shocked and astounded to be informed that my loan account was in arrears  and that a statutory notice to sell my fore cited land had thereby been served upon me via P.O Box 257-60200, Meru . Annexed herewith and marked “SM2”  is a copy of the said statutory notice.

6. THATnot only was I shocked due to the above information, the said postal address of P.O Box 257-60200, Meru is alien to me because my correct address is P.O Box 444-60200 Meru and I have never been served with any statutory notices to enable me redeem my property if at all I have been in arrears.

7. THATupon verbal  inquiry from the defendant at the fore cited branch. I was informed that my property would be up for sale considering that other notices had been issued through the above postal address.

8. THATI am greatly apprehensive that my property will be the subject  of sale by the defendant without notice having been issued to me.

9. THATmy home lies on the suit land and I have greatly  developed the same by building a double storey five bed-roomed residential permanent house and 4 servant quarters.

10. THAT the figures given as the outstanding loan balance are grossly exaggerated, inflated and do not reflect the true account and 1 shall pray for accounts.

11. THATI stand to be rendered destitute due to the defendant' actions.

12. THATthe  defendant has never sent me any demand notice  prior to exercising the statutory power of sale, therefore the notice to sell  my property is not only malafides but also malicious.

13. THATit is therefore  in the interest of justice that the orders sought herein are granted.

14. THATwhat is deponed herein  above is true to the best of my knowledge and belief.

Today's date for interpartes hearing was fixed in Court on 01/03/2016 when all parties were represented. In the absence  of the defendant or his Advocate, I deem it that the application is not opposed. In the circumstances it is allowed with the effect that prayer  3 thereof is confirmed.

Costs  shall be in the cause.

It is so ordered .

Delivered in open Court at Meru this 13th day of April, 2016in the presence of:-

CC: Daniel/Lilian

Edwin Kimathi for the Plaintiff

P.M NJOROGE

JUDGE