In the application dated 05.05.2023, the Plaintiff seeks an order that it be allowed to sell the suit property, which is charged to the Defendant (“the Bank”), by private treaty. In that regard, it seeks further orders directing the Bank to issue a no objection letter consenting to sale of the suit property by private treaty and the proceeds from the sale be used to offset the debt due to the Bank.
I have considered the arguments by the parties and I am constrained to dismiss the application. The relationship between the Plaintiff and the Bank is a contractual relationship which is also governed by the Land Act,2012 which provides for and regulates the rights and remedies available to the parties. In the event of default, the Bank is entitled to sell the suit property by public auction or in certain circumstances by private treaty. The right to sell the charged property is a remedy for the Bank and vests in the Bank and only it can exercise that right in accordance with the law. The Plaintiff, as chargor, cannot direct the Bank on how it exercise this right or seek the court's direction in that regard nor has it pointed to any provision in the law that permits such a course. Further, the court cannot re-write the contract between the parties by purporting to give the Plaintiff a right it does not have under the charge and the law.
In the ruling dated 06.04.2023, I allowed the Plaintiff's application for injunction and ordered the Bank to serve the statutory notices afresh. The Defendant is therefore correct to point out this application is premature as the notices have yet to mature.
Lastly, there is nothing stopping the Plaintiff from tendering the debt amount in order to redeem the suit property. The Plaintiff's right of redemption has not been affected in any way.
The application dated 05.06.2023 is dismissed with costs.
DATED and DELIVERED at NAIROBI this 12th day of JUNE 2023
D. S. MAJANJA
JUDGE