1. I have considered the Notice of Motion Application dated 11th April, 2024, together with affidavit in support sworn on even date; the Replying Affidavit sworn on 22nd October, 2023, in opposition to the same; the submissions of the parties; and the applicable law.
2. I note from the outset that the present application arises from a previous application dated 21st July, 2023. Directions had been issued in respect of the said application by my brother, Majanja, J. but to date, the Applicant has not complied with the same. The period of delay as at the date of hearing this application is over ten months since the said directions were issued. Instead of complying with the said directions, the Applicant chose to file the present application, seeking to recertify the original application.
3. Having considered the facts of the matter, it is evident that the 1st Respondent and not the Applicant, is the registered proprietor of the property in question, and it still owes an outstanding debt to the Bank.
4. The Applicant however contended that the Bank had agreed not to sell the units in question, and accordingly, it was estopped from exercising its statutory rights. Counsel could not however provide the court with sufficient evidence in support of the above argument.
5. In opposition to the application, the 2nd Respondent contended that the debt is admitted by the 1st Respondent, and is still outstanding. Further, counsel pointed out that the 1st Respondent has not filed any documents denying that the debt is due, and in any event, there is no evidence to that effect before the court.
6. Based on the facts before me, when this matter was last before my brother Majanja, J on 27th July, 2023, the only notice that had not been issued by the Bank was the Auctioneers Notice. Since then, the said notice has been served on the 1st Respondent and the same is annexed as Exhibit LS3 on the replying affidavit.
7. I am satisfied that all the relevant statutory notices have seen served on the 1st Respondent. To my mind, this is sufficient. There is no contractual relationship of chargor and chargee between the Applicant and the Bank. Accordingly, the Bank was not, and is not required to serve the Applicant with the Statutory Notices. Further, based on the record, it is evident that the units were sold by the 1st Respondent to the Applicant without the consent of the Bank, and no partial discharge of charge was, or has been issued in respect of those units.
8. I am satisfied in light of the above that the relevant notices were duly served on the 1st Respondent, and 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.
9. 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.”
10. 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.
11. Based on the reasons as set out above, I find that the application is without merit. The same is accordingly dismissed with costs.