1. I have considered the Notice of Motion application dated 8th March, 2024 together with affidavit in support sworn on even date; the supplementary affidavit sworn on 14th June 2024; the Replying Affidavit sworn on 26th April, 2024; the applicable law; and submissions of the parties.
2. The applicant has not disputed the debt and it is evident that the facilities were secured by way of a first and second charge dated 1st February, 2013 and 26th April, 2013 over the suit property. The amount of debt presently outstanding is approximately Kshs 2,056,901. 81/.
3. Upon inquiry by the court, Counsel for the applicant could not state with certainty what the monthly repayment due to the bank was; or when the last payment was made. He submitted that he did not know these details because his client was the guarantor of the loan, and not the borrower.
4. Based on the record before me, it is evident that the contract has not been performed since 17th April, 2023, which is over one year at present. No payments have been forthcoming since then and the debt is still outstanding.
5. I have examined the exhibits annexed to the respondent’s replying affidavit and I note that the Notice pursuant to Section 90 (3) of the Land Act, 2012, being a 90 days Statutory Notice was served on 19th May, 2023. Evidence of the same is annexed as Exhibit FN6 of the replying affidavit. The Notice was served as a hardcopy by registered mail and by email on the applicant and a certificate of posting is available on the record.
6. The record further shows that the Bank issued the applicant with a Notification of Sale pursuant to Section 96(2) of the Land Act, 2012, being a 40-day Notice. The same was served on 5th September, 2023 and evidence of the same is annexed to the replying affidavit as Exhibit FN8. The Notice was served as a hardcopy by registered mail and by email on the applicant.
7. Finally, the record shows that the Auctioneers issued a 45 days’ Notice to Redeem under the Auctioneers Rules, and the applicant was served with the same on 19th October, 2023. The said Notice was served together with a copy of the two previous notices by way of email and physically on the borrower. The record shows that notice was received and evidence of the same is found at pages 341 and page 343 which collectively bear a stamp receipt and post certificate in relation to the said service.
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 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.