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1. I have considered the Notice of Motion Application dated 20th January 2025 together with affidavit in support sworn on even date and the Replying Affidavit sworn on 3rd March, 2025.
2. The Applicant has admitted that the subject property was charged. The letter of offer is dated 1st December, 2020. Further, the charge is dated 3rd June, 2019. The same is not in dispute.
3. The Applicant has further admitted that the debt remains due to the bank, but could not remember how much is presently owing. Counsel stated the amount was around Kshs 70,000,000, and acknowledged that a monthly payment due. She could not however state precisely what the monthly payment to the Bank was, and was not aware of the last time that the Applicant made any such payment to the Bank in the performance of the agreement.
4. The Application was based on the argument that the intended auction is being carried out in bad faith because there has been a long delay between serving the statutory notices and the current action to carry out the Bank’s statutory power of sale. The Applicant was of the view that the notices ought to be re-served.
5. As regards the notices, I note from the Replying Affidavit and exhibits that the 90 days Statutory Notice was served on 17 November, 2022, the same was sent by registered post. The same is not disputed and is the mode of service indicated in the charge document.
6. Further, I note that the 40 -day Notice to Sell was issued on 9th March, 2023 and was served on 27 March, 2023 again by registered post. The same is not disputed.
7. Finally, the 45 days’ Notice to Redeem under the Auctioneers rules is dated on 19th September, 2023, and served on 20 September, 2023 in person on the Applicant, physically. There is a certificate of service on the record. The same is not disputed.
8. I am satisfied in light of the above that the relevant notices were duly served on the Applicant.
9. As regards the delay, there is no requirement for the Bank to act on its statutory powers of sale within a particular time frame after issuance of notices, and nor is there a requirement to reissue notices once the same have been issued in accordance with the law.
10. Finally, I note that a valuation of the subject property was carried out on 22nd January, 2025. This is within the period of one year of the intended sale of the property. No dispute has been raised in relation to the valuation.
11. Accordingly, 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.
12. In particular, I am satisfied that the Applicant has failed to make out a prima facie case under the first limb, in accordance with Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR , namely “a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.”
13. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially. Having failed to pass the first hurdle, the Applicant may not leap frog to the next and that brings the matter to an end.
14. Based on the reasons as set out above, I find that the Application is without merit. The same is accordingly dismissed with costs.
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1. I have considered the Notice of Motion Application dated 20th January 2025 together with affidavit in support sworn on even date and the Replying Affidavit sworn on 3rd March, 2025.
2. The Applicant has admitted that the subject property was charged. The letter of offer is dated 1st December, 2020. Further, the charge is dated 3rd June, 2019. The same is not in dispute.
3. The Applicant has further admitted that the debt remains due to the bank, but could not remember how much is presently owing. Counsel stated the amount was around Kshs 70,000,000, and acknowledged that a monthly payment due. She could not however state precisely what the monthly payment to the Bank was, and was not aware of the last time that the Applicant made any such payment to the Bank in the performance of the agreement.
4. The Application was based on the argument that the intended auction is being carried out in bad faith because there has been a long delay between serving the statutory notices and the current action to carry out the Bank’s statutory power of sale. The Applicant was of the view that the notices ought to be re-served.
5. As regards the notices, I note from the Replying Affidavit and exhibits that the 90 days Statutory Notice was served on 17 November, 2022, the same was sent by registered post. The same is not disputed and is the mode of service indicated in the charge document.
6. Further, I note that the 40 -day Notice to Sell was issued on 9th March, 2023 and was served on 27 March, 2023 again by registered post. The same is not disputed.
7. Finally, the 45 days’ Notice to Redeem under the Auctioneers rules is dated on 19th September, 2023, and served on 20 September, 2023 in person on the Applicant, physically. There is a certificate of service on the record. The same is not disputed.
8. I am satisfied in light of the above that the relevant notices were duly served on the Applicant.
9. As regards the delay, there is no requirement for the Bank to act on its statutory powers of sale within a particular time frame after issuance of notices, and nor is there a requirement to reissue notices once the same have been issued in accordance with the law.
10. Finally, I note that a valuation of the subject property was carried out on 22nd January, 2025. This is within the period of one year of the intended sale of the property. No dispute has been raised in relation to the valuation.
11. Accordingly, 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.
12. In particular, I am satisfied that the Applicant has failed to make out a prima facie case under the first limb, in accordance with Mrao Ltd v First American Bank of Kenya Limited and 2 Others [2003] eKLR , namely “a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.”
13. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially. Having failed to pass the first hurdle, the Applicant may not leap frog to the next and that brings the matter to an end.
14. Based on the reasons as set out above, I find that the Application is without merit. The same is accordingly dismissed with costs.
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