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|Case Number:||Civil Case 872 of 2010|
|Parties:||MICHAEL ODHIAMBO OPIYO v EQUATORIAL COMMERCIAL BANK LTD & JOHN M. MBIJIWE|
|Date Delivered:||13 Apr 2011|
|Court:||High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)|
|Judge(s):||Hannah Magondi Okwengu|
|Citation:||MICHAEL ODHIAMBO OPIYO v EQUATORIAL COMMERCIAL BANK LTD & another  eKLR|
|Disclaimer:||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|
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS COMMERCIAL AND TAX DIVISION)
CIVIL CASE NO. 872 OF 2010
MICHAEL ODHIAMBO OPIYO.................................................................................PLAINTIFF
R U L I N G
2. The applicant’s notice of motion seeks to have the defendants restrained from selling, disposing, alienating, auctioning, advertising for sale or threatening to do so, or in any manner interfering with the applicant’s occupation and quiet enjoyment of Kajiado/Kaputei-North/4730 (hereinafter referred to as the suit property), pending the hearing and determination of the applicant’s suit.
4. The defendants have responded to the application through a replying affidavit sworn by Jeckoniah Agoro who is the head of recoveries with the 1st defendant. Agoro depones that Southern Credit Bank Limited merged with Equatorial Commercial Bank Ltd on 1st June 2010 and changed its name to Equatorial Commercial Bank Ltd. Agoro exhibited a charge document duly executed by the applicant in favour of the 1st defendant and registered against the suit property. Also exhibited is a chattels mortgage over motor vehicle registration No.KBJ 860B.
6. I have carefully considered the application, the affidavit in support and in reply as well as the annexures thereto. I have also considered the submissions made by each party’s counsel. The issue for determination is whether the applicants have demonstrated to this court that his right or rights are being infringed by the defendant such as to justify the court granting the order of injunction.
8. The applicant has raised issues of account contending that no proper accounts have been given by the defendants for the realization of a chattels mortgage. The defendants’ response is that they have been unable to sell the motor vehicle subject of the chattels mortgage and therefore have not realized the security. The issue of accounts and realization of the chattels mortgage is one which will probably have to be determined by the court upon hearing the evidence. Be that as it may, it is trite law that a mortgagee cannot be restrained from exercising its power of sale because of a dispute over accounts. Mrao Ltd vs First American Bank of Kenya Ltd (2003) KLR 125 is a case in point.
10. The upshot of the above is that the applicant has failed to demonstrate the violation of any rights by the 1st defendant. Nor has the applicant established any prima facie case to justify the granting of interlocutory injunction. His application must therefore fail. It is accordingly dismissed with costs.
Dated and delivered this 13th day of April, 2011
H. M. OKWENGU