Kitur & Another V Standard Chartered Bank & 2 Others EKLR
|Civil Suit 62 of 2002||19 Jul 2002|
George Ernest Omondi Tunya
High Court at Nairobi (Milimani Law Courts)
Kitur & another v Standard Chartered Bank & 2 others
Kitur & another v Standard Chartered Bank & 2 others eKLR
Kitur & another v Standard Chartered Bank & 2 others (No 2)
High Court, at Nairobi
July 19, 2002
Civil Suit No 62 of 2002
Mortgages and Charges ––redemption – right to redeem charged property – suit for redemption on account of fraudulent exercise of the statutory power of sale – whether suit should be by Originating Summons or plaint – whether statutory notice of sale was served – remedy available to chargor where he is aggrieved by the value of an auction sale.
Injunctions –– interlocutory injunction - application for interlocutory injunction – factors that must be established for the purposes obtaining interlocutory injunctive relief.
Civil Practice and Procedure - affidavit - verifying affidavit – averments in the plaint – false averments in affidavit and plaint – whether a false affidavit amounts to a non affidavit – consequences of swearing in false affidavit.
The applicant sought a temporary injunction restraining the alienation of the subject property pending the determination of the suit.
The applicant argued that he was not served with a statutory notice of sale, that the property was sold by private treaty and not by public auction as advertised, that the applicant was denied an opportunity to redeem the suit property and that the property was sold far below the sale price.
The respondent on the other hand argued that the applicant had filed a false affidavit, had instituted the suit by Originating Summons instead of plaint, had no prima facie case and could adequately be compensated by damages.
1. Suits on claims of redemption only must be brought by originating summons under order XXXXVI of the Civil Procedure Rules, however where there are other prayers other than the one for redemption the applicants are entitled to come to court by way of plaint.
2. In deciding whether or not the requisite statutory notice, the underlying guideline for the court is whether or not the applicants received the notice.
3. Where the chargor is aggrieved by the value of an auction sale, its remedy lies in damages not in an injunction.
4. It is trite law that to succeed in an application for injunctive relief, the applicant must prove a prima facie case with a probability of success and should the court be in doubt in this requirement, the court may resolve the application on a balance of conveniences. But an interlocutory injunction will not normally issue unless there is irreparable injury which would not be adequately compensated by an award of damages.
5. Once a property is offered as security it by that very fact becomes a commodity for sale and that there is no commodity for sale whose value cannot be computed and determined. It is therefore not open to the applicant to allege that he is likely to suffer irreparable loss or injury, which cannot be compensated by an award of damages.
6. The Registered Land Act (cap 300) section 77(3) and the Auctioneers Act (cap 526) section 26(1) provides that any injury to a chargor by way of irregular exercise of the power of sale by a chargee or auctioneer, shall be compensated by an award of damages.
7. The averments in the plaint and in the verifying affidavit to the effect that there have been no proceedings between the parties were false and in contravention of the rules. A false affidavit is a non-affidavit and thus even on a matter of technicalities, I do strike out the verifying affidavit, the plaint is therefore untenable.
8. The applicant having stated untruths in the affidavit regarding suits between the parties and regarding attempts at redemption, has come to court with untainted hands, it is thus undeserving of an equitable reliefs.
Application struck out.
1. Kenya Commercial Bank Ltd v Osebe  KLR 296; (1982-88) 1 KAR 48
2. Giella v Cassman Brown  EA 353 3. Kitur, Sambai v Standard Chartered & 2 others Eldoret High Court Civil Case No 50 of 2002
3.Samross Investments Limited & another v KCF Co Ltd Eldoret High Court Civil Case No 95 of 2001
1. Civil Procedure Rules (cap 21 Sub Leg) order VI rules 13(1)(a); order VII rules 1(e), 1(3); order XXXIX rules, 1, 2, 3, 9, 10; order XXXXVI
2. Civil Procedure Act (cap 21) sections 3, 3A, 63(c)
3. Registered Land Act (cap 300) sections 77(1), 77(3)
4. Auctioneers Act (cap 526) section 26(1)
Mr Ngigi Mbugua for the Applicants.
Mr Gicheru for the 1st & 2nd Respondents.
Mr Manani for the 3rd Respondents.