RULING:
1. I have considered the Notice of Motion Application dated 6th November, 2023 together with the affidavit in support sworn on even date and the Replying Affidavit sworn on 6th February, 2024.
2. The applicant has not denied that an outstanding loan of Kshs 9,500,000 - was due to the 1st Defendant arising out of a banking facility and which was secured by way of charge over the subject property.
3. The primary allegation is that the valuation by the Defendant’s is below the true value of the subject property.
4. The applicant admitted that it was in default and was accordingly served with a section 90 Notice under the Land Act 2012. The statutory notice is attached as Exhibit B of the Defendant’s Replying Affidavit.
5. Further to the above, I note that a 40 day notice pursuant to section 96 Land Act was issued and the same is not disputed. The same is attached at Exhibit C of the Defendant’s Replying Affidavit.
6. Finally, the 45-day redemption notice pursuant to Rule 15 of the Auctioneers rules was also issued and the same is annexed as E1 and E2 of the Replying Affidavit.
7. The notices are evidenced by postage stamp and certificates of service showing that the applicant received the same in person as well.
8. Based on the record, the debt is still due and owing and stood at the amount of 10,596,252 as at December 2023. The record further shows that the last valuation was carried out on 1st December 2023, which is less than one year ago, to date, which is in line with the duty of the Bank under section 97(1) of the Land Act 2012.
9. The applicant on his part admitted that it has not carried out a valuation of its own in support of its view that the defendant’s valuation was below market value.
In light of the above, I am satisfied that the applicant has not met the threshold for a grant of injunction as set out in Giella v Cassman Brown [1973] EA 358, namely:
a. Establish his case only at a prima facie level,
b. Demonstrate irreparable injury that cannot be compensated by way of damages if a temporary injunction is not granted, and
c. Ally any doubts as to (b) by showing that the balance of convenience is in his favour.
10. I say so because, in the present matter all the relevant statutory notices have been served and I am of the view that damages are an adequate remedy in the event of an undervaluation as alleged.
11. The said allegation relating to undervaluation, is not however, in my view a basis upon which this court ought to grant an injunction, especially given the facts as set out above.
12. Based on the reasons as set out above, I find that the application is without merit. The same is accordingly dismissed with costs.
1. I have considered the Notice of Motion Application dated 6th November, 2023 together with the affidavit in support sworn on even date and the Replying Affidavit sworn on 6th February, 2024.
2. The applicant has not denied that an outstanding loan of Kshs 9,500,000 - was due to the 1st Defendant arising out of a banking facility and which was secured by way of charge over the subject property.
3. The primary allegation is that the valuation by the Defendant’s is below the true value of the subject property.
4. The applicant admitted that it was in default and was accordingly served with a section 90 Notice under the Land Act 2012. The statutory notice is attached as Exhibit B of the Defendant’s Replying Affidavit.
5. Further to the above, I note that a 40 day notice pursuant to section 96 Land Act was issued and the same is not disputed. The same is attached at Exhibit C of the Defendant’s Replying Affidavit.
6. Finally, the 45-day redemption notice pursuant to Rule 15 of the Auctioneers rules was also issued and the same is annexed as E1 and E2 of the Replying Affidavit.
7. The notices are evidenced by postage stamp and certificates of service showing that the applicant received the same in person as well.
8. Based on the record, the debt is still due and owing and stood at the amount of 10,596,252 as at December 2023. The record further shows that the last valuation was carried out on 1st December 2023, which is less than one year ago, to date, which is in line with the duty of the Bank under section 97(1) of the Land Act 2012.
9. The applicant on his part admitted that it has not carried out a valuation of its own in support of its view that the defendant’s valuation was below market value.
In light of the above, I am satisfied that the applicant has not met the threshold for a grant of injunction as set out in Giella v Cassman Brown [1973] EA 358, namely:
a. Establish his case only at a prima facie level,
b. Demonstrate irreparable injury that cannot be compensated by way of damages if a temporary injunction is not granted, and
c. Ally any doubts as to (b) by showing that the balance of convenience is in his favour.
10. I say so because, in the present matter all the relevant statutory notices have been served and I am of the view that damages are an adequate remedy in the event of an undervaluation as alleged.
11. The said allegation relating to undervaluation, is not however, in my view a basis upon which this court ought to grant an injunction, especially given the facts as set out above.
12. Based on the reasons as set out above, I find that the application is without merit. The same is accordingly dismissed with costs.