Nelly Rwamba Mugo & another v Anita Kiragu & 5 others

High Court, at Nairobi

September 18, 2002

Ringera J

Civil Case No 961 of 2002

Injunction - interlocutory injunction- chargee exercising his statutory power of sale - no evidence of illegality of the sale - whether chargee can be restrained from exercising statutory power of sale on grounds that are not germane to the validity of the charge or to the issue of whether the said power of sale is due and exercisable.

Contract - sale of land - land subservient to charged property - sale agreement executed subsequent to charge - agreement conferring on the purchaser right of way over charged property - no reference to the charge in the agreement - no approval of the covenant by the chargee - whether chargee bound by the covenant.

Mortgages and Charges - statutory power of sale - whether sale can be restrained by injunction on grounds not germane to the validity of the charge or whether the power of sale is due and exercisable.

The applicants entered into a sale agreement with the 1st and 2nd respondents for the sale of land. The sale was concluded and a transfer executed and registered in favour of the applicants. The land was subservient to an adjacent land which at the time of concluding the sale had been charged with the 4th defendant Bank. When the Bank sought to exercise its statutory power of sale to realize its security, the applicants applied to court for an interlocutory injunction arguing that if the Bank sold the charged property, they will loose their right of way to their property which would then be rendered inaccessible.

Held:

1. The sale agreement embodying the covenant for a right of way was executed long after the property in question had been charged to the Bank and the Bank could not possibly be bound by a covenant affecting its interest in the charged property and which covenant it had not approved.

2. In the absence of any unlawful acts on the part of the Bank and/or its auctioneers violative of the applicants’ legal rights there was no juridical basis for the remedy of the interlocutory injunction against the respondents.

Application dismissed.

Cases

No cases referred to.

Statutes

No statutes referred.

Criminal law - two counts of robbery with violence - accused convicted and sentenced to death on both counts - appeal - unrepresented accused person offering written submissions in his appeal - re-evaluation of the evidence by the first appellate court - court finding that overwhelming evidence to support the convictions - appellant having been arrested immediately after the robbery, stolen articles and assault weapon recovered from him - appellant having confessed to the crime and having been identified by the complainants - Penal Code section 296(2)