1. Before the court is an application dated 20th June, 2023. It seeks injunctive relief against the respondents and for provision of the loan agreement and reconciliation of accounts. The application is supported by the affidavit of Duncan Gitonga Kibe sworn on 20th June, 2023.
2. The application is opposed by a replying affidavit sworn by Catherine Muthiani on 14th July, 2023. The 1st respondent also filed written submissions dated 20th September, 2023. The applicant did not file any written submissions. The issue is whether the applicant is entitled to the orders sought in the said application.
3. As far as the 1st respondent is concerned, the applicant has not satisfied the test of grant of an injunction as laid out in the locus classicus case of Giella V Cassman Brown & Co Ltd, [1973] EA 385.
4. Firstly, the respondent claims that the applicant has not proved to this court that he has a prima facie case with good chances of success. The applicant admits default of the facility and that the suit property was charged as security and in that regard the 1st respondent was entitled to exercise its statutory power of sale upon complying with the requirement for issuance of the statutory notices dated 5th August, 2022 and 22nd November, 2022.
5. This court has time and again held that undervaluation of a property is not a ground for barring a financial institution from exercising its statutory sale. The issue of what is due is a matter that can be quantified and if need be, be refunded to the applicant, equally he can be compensated losses and damages suffered and found to be due.
6. For these reasons, the application dated 20th June, 2023 is dismissed with costs to the 1st respondent. Mention for directions on hearing on the suit on 23rd May, 2204.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 19TH DAY OF MARCH, 2024.
F. MUGAMBI
JUDGE
2. The application is opposed by a replying affidavit sworn by Catherine Muthiani on 14th July, 2023. The 1st respondent also filed written submissions dated 20th September, 2023. The applicant did not file any written submissions. The issue is whether the applicant is entitled to the orders sought in the said application.
3. As far as the 1st respondent is concerned, the applicant has not satisfied the test of grant of an injunction as laid out in the locus classicus case of Giella V Cassman Brown & Co Ltd, [1973] EA 385.
4. Firstly, the respondent claims that the applicant has not proved to this court that he has a prima facie case with good chances of success. The applicant admits default of the facility and that the suit property was charged as security and in that regard the 1st respondent was entitled to exercise its statutory power of sale upon complying with the requirement for issuance of the statutory notices dated 5th August, 2022 and 22nd November, 2022.
5. This court has time and again held that undervaluation of a property is not a ground for barring a financial institution from exercising its statutory sale. The issue of what is due is a matter that can be quantified and if need be, be refunded to the applicant, equally he can be compensated losses and damages suffered and found to be due.
6. For these reasons, the application dated 20th June, 2023 is dismissed with costs to the 1st respondent. Mention for directions on hearing on the suit on 23rd May, 2204.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 19TH DAY OF MARCH, 2024.
F. MUGAMBI
JUDGE