RULING:
1. I have considered the Notice of Motion application dated 31.10.23 together with affidavit in support sworn on 31 October 2023 and the Replying Affidavit sworn on 14th November, 2023 and the submissions of counsel and the relevant authorities.
2. The applicant has admitted the debt and stated that the amount outstanding is Kshs 19 million owing to the bank, but qualified that some payments made by the applicant had not captured in the various notices.
3. Counsel admitted that the monthly repayment due to the bank is Kshs 197,000 per month. He admitted that the last payment by the applicant to the bank (in accordance with the contract) was made in March 2022, but qualified that most recently, the applicant had made a payment of Kshs 50,000 to the bank.
4. I do not think the above payment is sufficient. It is clear to me that the contract has not been performed for almost 1 year and 7 seven months to date.
5. As regards the notices, I note from the Replying Affidavit and exhibits that the 90 days Statutory Notice was served on 25th June 2021, the same was sent by email and duly acknowledged as received by the applicant.
6. Further, I note that the 40 -day Notice to Sell was issued on 23.06.22 and was served physically on the applicant.
7. Finally, the 45 days’ Notice to Redeem under the Auctioneers rules was served on 19th September 2022, on the applicant, again physically.
8. I am satisfied in light of the above that the relevant notices were duly served on the applicant, and the applicant has not met the threshold for a grant of injunction 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.Based on the reasons as set out above, I find that the application is without merit. The same is accordingly dismissed with costs.
The file is marked as closed.