Thube v Equity Bank Limited [2022] KEHC 10894 (KLR)

Thube v Equity Bank Limited (Civil Case E052 of 2021) [2022] KEHC 10894 (KLR) (Commercial and Tax) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10894 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case E052 of 2021

DAS Majanja, J

May 19, 2022

Between

Hannah Njeri Thube

Plaintiff

and

Equity Bank Limited

Defendant

Ruling

1. The facts giving rise to the application and the suit are common ground. The Defendant (“the Bank”) advanced the Plaintiff from time to time facilities secured by, inter alia, Dagoretti/riruta/5312 (“the suit property”) as follows: a Charge dated 22nd November 2011 securing a maximum loan amount of KES 5,000,000. 00, a further Charge dated 5th June 2013 securing a maximum of KES. 6,000,000. 00 and a second further Charge dated 19th May 2016 securing a maximum of KES. 19,000,000. 00. In due course the Plaintiff defaulted on her obligations and when the Bank threatened to exercise its statutory power of sale, she moved the court for an injunction. I heard the application and dismissed it on 14th June 2021.

2. In order to forestall the sale of the suit property pending the appeal from the ruling dated 14th June 2021, the Plaintiff once again filed an application dated 20th August 2021. The application was resolved by an order dated 3rd September 2021 where the Plaintiff was ordered to pay the outstanding amount by installments of KES 200,000. 00 with effect from 1st August 2021 payable on every 30th day of every subsequent month and that the Plaintiff do settle the outstanding principle debt with interest thereon within 120 days from the date of the order.

3. The Plaintiff has once again moved the court by the Notice of Motion dated 7th January 2022 seeking to restrain the Bank from selling the suit property and seeking an extension of the orders issued on 3rd September 2021 to enable it settle the outstanding principle debt with interest thereon which time was to lapse on 9th January 2022 in order to allow her to dispose of one of her properties; Nairobi/block 103/183 in order to settle part of the debt. The application is supported by her affidavit sworn on 7th January 2022. The Bank opposes the application through the affidavit of it Credit Manager, Community Branch, Joseph Mahiri, sworn on 14th February 2022.

4. I have considered the depositions and the oral submissions by counsel. I find that the Plaintiff does not dispute its indebtedness to the Bank. Further and in light of the ruling I delivered, the Bank is entitled to exercise its statutory power of sale. What the Plaintiff seeks is indulgence from the Bank. When she filed the application in January 2022 she had entered in a sale agreement dated 6th October 2021 with one ASG for the sale of Nairobi Block 103/183 for KES. 18,800,000. 00. The completion date was 60 days from the date of execution of the agreement. The completion date has since passed and five months have elapsed since the application was lodged. It is not clear why the transaction has not been completed. Moreover, I doubt that the court has jurisdiction at any rate, to modify the terms of repayment of the debt.

5. The Bank’s statutory power of sale has accrued. It has been affirmed by this court and I have no option but to dismiss the application dated 7th January 2022 with costs to the Defendant.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MAY 2022. D. S. MAJANJAJUDGECourt of Assistant: Mr M. OnyangoMr Kiboi instructed by Kiboi and Company Advocates for the Plaintiff.Mr Malonza instructed by S. M. Kilonzo and Associates Advocates for the Defendant.