1. I have considered the Application dated 23 April, 2025 together with the affidavit sworn in support and the reply sworn in opposition to the same dated 5th May 2025.
2. The applicant submitted that the respondent Bank has advertised the property in question for sale despite orders of the court issuing status quo.
3. The respondent submitted that the said orders in question were issued on condition that the applicant continue to perform the contract, which it has not done.
4. In the applicant’s view, the contract had been performed in full and there was nothing to perform. He could not however explain how this was the case because the debt remained due and owing to the Bank. The argument put forward appeared to be to the effect that arrears had been paid and were no longer due. Counsel did not answer the question of whether or not the applicant was making monthly payments due to the Bank arising out of the contract or facility between the parties.
5. Having considered the submissions of the parties and the looking the replying affidavit with annextures, it is evident that applicant borrowed approximately Kshs 43 million from the Bank. He paid a monthly installment of approximately Kshs 739, 000/- a month.
6. Following the sale of one of the charged properties, the bank was able to recover the sum of Kshs 19 million, which was due and owing.
7. The respondent pointed out that the debt due, as at 28 April 2025, was still approximately Kshs 41 million.
8. The respondent pointed out that the monthly installment due each month remains at Kshs 739,000/-.
9. The respondent submitted that no monthly installment have been made by the applicant since 21st September, 2023. This fact was not denied by the applicant.
10. Having considered the above, I reiterate that the order of this court issued on 30, September, 2024 stipulated that the status quo orders restraining sale of the various properties were conditioned on the applicant performing the contract in full. Performance of the contract in full includes paying the monthly payments due to the Bank as and when the same fall due. The orders were not applicable to only the arrears that were outstanding at the time of issuance of the order.
11. This has not happened, and the applicant has not denied the fact of non -performance of the contract between the parties in this regard.
12. I take note that the amount owing to the bank remains due and continues to accrue interest.
13. Having found that the applicant has failed to comply with the said orders issued by this court the upshot is that the application dated 23 April 2025, is without merit. The same is dismissed with costs.
14. The bank is accordingly at liberty to proceed with its statutory powers of sale. For avoidance of doubt the status quo orders issued by this court are discharged.