Background
1. There are two applications before the court. The first one is dated 8th February, 2024 seeking injunctive orders pending the hearing and determination of the present suit. The second application is dated 14th February, 2024 seeking a review of this Court’s ex parte orders.
Analysis and determination
2. Upon carefully considering the application of 8th February, 2023, as well as the responses thereto and also the written and oral submissions by both counsels, this court notes that the jurisprudence on grant of an injunction is well crystalized. In considering whether this threshold has been met, this court notes that the applicant acknowledges the loan facilities advanced vide the letters of offer dated 27th April, 2012, 16th July, 2013 and 7th January, 2014. The offer letters indicate that the loan facilities were repayable at a monthly amount of Kshs. 618,125/=, Kshs. 591,153/= and Kshs. 1,024,516/= respectively.
3. A preliminary review of the bank statements provided by the respondent indicates that the applicant frequently failed to make full monthly repayments, often defaulting on the required monthly installments for extended periods. The court acknowledges the authenticity of these bank statements is not in question.
4. The applicant also does not deny the restructuring of the facility, as evidenced by a letter dated July 3, 2023. At the time of this letter, the outstanding amount scheduled for restructuring was Kshs. 70,974,078.45. It is clear that the applicant was granted a moratorium period of three months, from July 2023 until October 3, 2023. Even after this period, there were instances of non-payment, which are evident from the bank statements presented to the court, with the last payment being around 29th December, 2023.
5. The applicant confirms that she was served with a statutory notice dated 3rd November, 2023 demanding arrears of KShs.1,784,537.68 which amount continued to accrue interest and stood at Kshs. 1,954,825.35 as at 30th November 2023. It is this disputed amount that is the gravamen of this application. The plaintiff seeks to have a reconciliation of the amounts outstanding.
6. The statutory notice dated 3rd November 2023 also indicates the amount outstanding from the loan facility as Kshs. 74,622,335.78. It is clear from both parties that the final repayment date for the loan is 1st March, 2029. It is my finding that the respondent can only seek to recover monies that are due as at now and not monies that have not yet fallen due.
7. That said, the respondent disputes the calculations as submitted by the applicant. I do not see the applicant to be denying at any point in her pleading that she benefitted from the loan facilities and that she entered into the agreements with the respondent. In alignment with existing judicial pronouncements, a dispute on the amount due on a loan facility is not a ground for establishing a prima facie case, for purposes of an injunction.
8. I say this noting that once the respondent has exercised its statutory power of sale, the proceeds thereof are easily ascertainable and if from the substantive hearing it is established that there was an overpayment as alleged by the plaintiff, the amount of overpayment is also ascertainable and any amounts may be refunded.
9. In my view, given the balance of convenience and based on my earlier statements, it is more prudent to decline the injunctive orders. This is because, pending the final determination of this court, should it be found that an amount is indeed due to the respondent, this amount will continue to accrue interest. The respondent has expressed its apprehension that the amount will continue to escalate and it is likely to face undue difficulty in recovering its funds.
10. In the circumstances, the application dated 8th February, 2024 is dismissed with costs to the respondents. Having determined this application, it follows that the second application dated 14th February, 2024 has been overtaken by events.
Disposition
11. In conclusion, the application dated 8th February, 2024 is dismissed with costs to the respondent. In light of this decision it follows that the application dated 14th February, 2024 has been overtaken by events.
1. There are two applications before the court. The first one is dated 8th February, 2024 seeking injunctive orders pending the hearing and determination of the present suit. The second application is dated 14th February, 2024 seeking a review of this Court’s ex parte orders.
Analysis and determination
2. Upon carefully considering the application of 8th February, 2023, as well as the responses thereto and also the written and oral submissions by both counsels, this court notes that the jurisprudence on grant of an injunction is well crystalized. In considering whether this threshold has been met, this court notes that the applicant acknowledges the loan facilities advanced vide the letters of offer dated 27th April, 2012, 16th July, 2013 and 7th January, 2014. The offer letters indicate that the loan facilities were repayable at a monthly amount of Kshs. 618,125/=, Kshs. 591,153/= and Kshs. 1,024,516/= respectively.
3. A preliminary review of the bank statements provided by the respondent indicates that the applicant frequently failed to make full monthly repayments, often defaulting on the required monthly installments for extended periods. The court acknowledges the authenticity of these bank statements is not in question.
4. The applicant also does not deny the restructuring of the facility, as evidenced by a letter dated July 3, 2023. At the time of this letter, the outstanding amount scheduled for restructuring was Kshs. 70,974,078.45. It is clear that the applicant was granted a moratorium period of three months, from July 2023 until October 3, 2023. Even after this period, there were instances of non-payment, which are evident from the bank statements presented to the court, with the last payment being around 29th December, 2023.
5. The applicant confirms that she was served with a statutory notice dated 3rd November, 2023 demanding arrears of KShs.1,784,537.68 which amount continued to accrue interest and stood at Kshs. 1,954,825.35 as at 30th November 2023. It is this disputed amount that is the gravamen of this application. The plaintiff seeks to have a reconciliation of the amounts outstanding.
6. The statutory notice dated 3rd November 2023 also indicates the amount outstanding from the loan facility as Kshs. 74,622,335.78. It is clear from both parties that the final repayment date for the loan is 1st March, 2029. It is my finding that the respondent can only seek to recover monies that are due as at now and not monies that have not yet fallen due.
7. That said, the respondent disputes the calculations as submitted by the applicant. I do not see the applicant to be denying at any point in her pleading that she benefitted from the loan facilities and that she entered into the agreements with the respondent. In alignment with existing judicial pronouncements, a dispute on the amount due on a loan facility is not a ground for establishing a prima facie case, for purposes of an injunction.
8. I say this noting that once the respondent has exercised its statutory power of sale, the proceeds thereof are easily ascertainable and if from the substantive hearing it is established that there was an overpayment as alleged by the plaintiff, the amount of overpayment is also ascertainable and any amounts may be refunded.
9. In my view, given the balance of convenience and based on my earlier statements, it is more prudent to decline the injunctive orders. This is because, pending the final determination of this court, should it be found that an amount is indeed due to the respondent, this amount will continue to accrue interest. The respondent has expressed its apprehension that the amount will continue to escalate and it is likely to face undue difficulty in recovering its funds.
10. In the circumstances, the application dated 8th February, 2024 is dismissed with costs to the respondents. Having determined this application, it follows that the second application dated 14th February, 2024 has been overtaken by events.
Disposition
11. In conclusion, the application dated 8th February, 2024 is dismissed with costs to the respondent. In light of this decision it follows that the application dated 14th February, 2024 has been overtaken by events.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 14TH DAY OF MAY, 2024.
F. MUGAMBI
JUDGE