|Civil Case 752 of 2009
|LAPORTE HOLDINGS LTD & INTEX SECRETARIAL BUREAU LTD v EQUITY BANK LTD
|08 Apr 2011
|High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
|LAPORTE HOLDINGS LTD & another v EQUITY BANK LTD  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
AT NAIROBI (MILMANI COMMERCIAL COURTS COMMERCIAL AND TAX DIVISION)
The application is supported by the annexed affidavit of Purity Kinyanjui and is based on the grounds that the Applicant is aggrieved by the order of injunction issued against it. It is the Applicant’s case that the order was issued by mistake as the court relied on an issue of fact which was not canvassed before it and therefore there is a mistake apparent on the face of the record. Consequently, the order ought not to have been made and it does not serve any other purpose except to delay the realization of the security by the Applicant. In the circumstances, the Applicant contends that it is in the interest of justice that the injunction to be discharged.
With the leave of the court, both parties filed written submissions on which they relied entirely. After considering the pleadings and the rival submissions by the counsel, I find that the only issue to be determined in this matter is whether there is an error apparent on the face of the record. A reading of the ruling delivered by the learned Judge shows that in the last three sentences of the ruling, she rendered herself as follows –
“Issuance of a Statutory Notice is the very basis of a chargee’s Statutory right of sale. It was upon the chargee to show at the hearing of the application dated 8th October, 2009 that such a right had accrued. They did not. Instead they are now seeking to introduce new evidence which was not before the judge at the time of delivering the ruling.”
A reading of the ruling delivered by the learned Judge demonstrates clearly that she delved into the issue of a Statutory Notice which was not an issue in the matter. By finding that the Statutory Notice provided for under the Transfer of Property Act was not served, and allowing the application by granting an injunction on that basis, the court went beyond the issues placed before it. With respect, that is an error on the face of the record which, in my view, warrants a review.