Background and Introduction
1. For determination is an application dated 24th October 2023 in which the applicant seeks injunctive orders pending the hearing and determination of an intended appeal. The application is opposed.
2. The main grounds on which the application is premised is that the intended appeal is arguable and that the threshold for grant of the injunctive orders has been met. The applicant blames the respondents for rushing to dispose of the suit property without issuing proper notices, for not having carried out a valuation of the property and notified the applicant about the actual arrears due.
Analysis and determination
3. I have carefully considered the application, responses, evidence and both oral and written submissions filed by the parties. The main issue for determination is whether the applicants have met the threshold for granting the injunction orders pending the hearing and determination of the appeal. Both parties acknowledge that the applicants must satisfy the conditions established in Giella v. Cassman Brown & Co., Ltd. [1973] E.A. 358.
4. These conditions require the applicants to demonstrate a prima facie case with a probability of success, show that they would suffer irreparable harm that could not be adequately compensated by damages, and, if the Court is in doubt, have the application determined on the balance of convenience.
5. On the first requirement, the facilities extended by the 1st respondent are not controverted. The applicant however contends that having paid an amount of Kshs. 6,000,000/= and considering that the respondents had repossessed two motor vehicles belonging to the applicant, the amount due, if any, ought to have been sufficiently covered. The bank statements produced by the 1st respondent at pages 89 to 94 however tell a different story.
6. The records clearly indicate that as of 27th March, 2023, the applicant was in default by Kshs. 10,737,308.99, an amount that continues to accrue interest. Since the authenticity of the bank statements is not disputed, they serve as prima facie evidence of the arrears, as per Section 176 of the Evidence Act. The submission by the applicant that the amount had been paid off is further refuted by the fact that the 1st respondent restructured the facility on two occasions at the request of the applicant.
7. The first restructuring was on 3rd May 2021 when the account was in arrears by Kshs. 8,241,364/=. The second took place on and 22nd December 2021 at which time the arrears stood at Kshs. 8,160,506/=. In addition, the loan statements were supplied to the applicant via an email of 16th January 2023, found at pages 87-88 of the 1st respondent’s documents. These two factors undermine the applicant’s claim of being unaware of the exact default amount and render any request for account reconciliation or statement production moot.
8. The applicant’s argument that the respondents failed to issue the required legal notices is unfounded. The evidence presented by the 1st respondent clearly shows that a statutory notice dated 2nd August 2022 under section 90 of the Lands Act demanding Kshs. 9,352,983.85 was sent to the applicant by registered post. The notice is at pages 50-52 of the 1st respondent’s documents. So too is the notice dated 3rd November 2022 under section 96(2) of the Land Act (pages 53-54) and a 45 days redemption notice and notification of sale dated 11th January 2023 at page 77 also sent by registered post.
9. Regarding the issue of valuation, I have also confirmed that a valuation was indeed conducted on the suit property. The valuation report dated 25th October 2022 is found at pages 56-71 of the 1st respondent’s documents.
10. At this point, I believe it is now obvious that the applicants have not made out a prima facie case with a probability of success. Their inquiry on whether they are entitled to an injunction ends at this point in line with the dicta in Nguruman Limited v Jane Bonde Nielsen and 2 Others(supra). In any event, I find that any loss that is to be suffered by the applicant can ameliorated by an award of damages as per section 99(4) of the Land Act. I have not been shown or told that the 1st respondent, is not capable of paying these damages. The balance of convenience also tilts in favour of the 1st respondent realizing their security as early as possible so that the value of the suit property is not outstripped by the ballooning debt.
Disposition
11. The upshot is that the application dated 24th October 2023 seeking injunctive relief has no merit and it is dismissed with costs. The interim orders are accordingly discharged.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 10th DAY OF FEBRUARY 2025.
F. MUGAMBI
JUDGE