1. I have considered the Notice of Motion Application dated 14 December, 2023 together with the affidavit in support sworn on even date and the Replying Affidavit sworn on 30th January, 2024; and the 1st Defendant’s replying affidavit, sworn on 10th January, 2024.
2. The applicant has not denied that an outstanding loan of Kshs 43, 758,220/- was due to the 1st Defendant giving rise to the impugned auction.
3. The primary allegation was that the 2nd Defendant executed the Statutory Power of Sale in breach of the notice requirements under the law. In particular, the applicant submitted that it was not served with the 45-day notice under section 96 (2) of the Land Act, but rather was given only 21 days. It further asserted that the notice was served on him by a different person from the one indicated on the certificate of service. Finally, the applicant contended that the auction was a sham.
4. In opposition to the application the respondent submitted that it had carried out service in accordance with the law, and that the property in question had been sold in accordance with the law.
5. I have reviewed the documentation on record. As regards the notices, I note from the Replying Affidavit and exhibits MW 2 that the 45 day’s Notice to Redeem under the Auctioneers rules was served on 23 April, 2023. An affidavit of service has been filed in relation to the same, and the certificate of service bears the same name as the person who served the Notice to redeem. I am satisfied that the same was duly served in accordance with the law.
6. I take note that a further 21 days’ notice was also served on the applicant in addition to the 45 days’ notice. The respondent explained that the same was served as a courtesy. I do not think that there was anything improper with this. If anything, the additional notice granted the applicant further time to comply.
7. Similarly, it is evident that the auction was advertised in the Daily Nation and Standard Newspaper prior to its conduct on 29th November, 2023. As regards the contention that the same was a sham, the court is unable to substantiate the same at this point, and such an allegation may therefore be proved by way of evidence at a trial, if need be, in the event the applicant wishes to pursue a remedy for damages.
8. In light of the above, I am satisfied that 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. Based on the reasons as set out above, I find that the application is without merit. The same is accordingly dismissed with costs.
10. The previous order issued in terms of prayer c is vacated.