Background
1. Before the court is an application dated 7th November 2023 seeking injunctive orders against the respondents from dealing with or interfering with the applicant’s possession of Land Reference Number 330/250 Sandalwood Clyde Gardens Apartments Lavington situate within Nairobi County (the suit property), as set out in the application.
2. While the applicant confirms that the said suit property was charged to the 1st respondent to secure loan of about Kshs. 15,000,000/=, he takes issue with the respondents’ intention to sell the suit property without informing the applicant about the current liability and allowing the applicant an opportunity to redeem the property.
3. The applicant alleges that the respondent has not issued statutory notices as required under section 90(2) of the Land Act, neither have they issued a notice of intention to sell pursuant to the provisions of section 96(3) of the Land Act. The applicant further blames the 1st respondent for failing to conduct a valuation in the last 12 months.
4. The application is opposed by the 1st respondent who vehemently denies the issues raised by the applicant. The respondent notes that the applicant indeed confirms that they are indebted to the bank and the applicant even seeks to be advised of the extent of his default.
5. The bank confirms that upon default, they issued a demand to the applicant after which all the necessary notices were sent out and the applicant requested to restructure the facility. The bank acceded to the request. Even after extending this indulgence, the bank claims that the applicant still continued with the default, forcing the bank to move in a second time to realize the security. The bank further confirms that the suit property has also been valued contrary to the allegations by the plaintiff.
Analysis and determination
6. I have carefully considered the pleadings, written submissions and the authorities filed by the rival parties. The issue for determination is whether the applicant has made out a case for the injunctive relief sought.
7. Order 40 Rule 1 of the Civil Procedure Rules 2010 gives the circumstances under which a temporary injunction can be granted by the Court. The conditions that guide the Court in granting such orders are also well crystalized. These were set out in the celebrated case of Giella vs. Cassman Brown & Co. Ltd (1973) E.A 385, at page 360 where Spry J. held that: -
"The conditions for the grant of an interlocutory injunction are ...well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience."
8. On the first condition, this Court is called upon to ascertain whether the applicants have shown a prima facie case following the threshold laid out in Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125. The Court defined a prima facie case as: -
"...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 as to call for an explanation or rebuttal from the latter...a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant's case upon trial. That is clearly a standard which is higher than an arguable case."
9. In determining whether a prima facie case has been demonstrated, I am in turn cognizant of the limitations of enquiry that are permitted of this court at this point in time. The Court of Appeal in Nguruman Ltd v Jan Bonde Nielsen 8 2 Others, [2014] eKLR observed that: -
“In considering whether or not a prima facie case has been established, the Court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation.”
10. From a cursory perusal of the record, I note that the existence of the loan facility is not disputed neither is the request to restructure the facility which was made by the applicant to the bank vide a letter dated 6th December 2022. Contrary to the assertions by the applicant that the bank had failed to inform him of the extent of his outstanding liability, the court notes that there were several letters written to the applicant on diverse dates including 7th February 2022.
11. As far as statutory notices are concerned the court notes that these were issued on 16th May 2022 for Kshs. 1,045,420.01 and 26th April 2023 for Kshs. 1,352,697.23, via registered post. The notices under section 96(2) were equally sent to the applicant also via registered post. The documents produced by the bank include a valuation report dated 16th October 2023. The bank has attached bank statements which the applicant is in receipt of, evidencing the extent of liability.
12. The correspondence to the applicants was sent to postal address 19310-00202, the same address that appears in the offer letter and charge documents. The applicant does not deny the postal address or receipt of the notices evidenced by a certificate of postage.
13. From the totality of the evidence before me, the applicant has failed to meet the threshold required to prove a prima facie case.
14. In Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB Civil Appeal no 77 of 2012 [2014] eKLR the Court stated that if the plaintiff is unable to satisfy this first condition, the issue as to whether damages are sufficient to compensate the plaintiff in the event the suit succeeds as well as the balance of convenience and where that lies, does not arise.
Disposition
15. In the premises I find that the applicant has not made out a case for grant of injunctive orders. I find no merit in the application and the same is dismissed with costs.
1. Before the court is an application dated 7th November 2023 seeking injunctive orders against the respondents from dealing with or interfering with the applicant’s possession of Land Reference Number 330/250 Sandalwood Clyde Gardens Apartments Lavington situate within Nairobi County (the suit property), as set out in the application.
2. While the applicant confirms that the said suit property was charged to the 1st respondent to secure loan of about Kshs. 15,000,000/=, he takes issue with the respondents’ intention to sell the suit property without informing the applicant about the current liability and allowing the applicant an opportunity to redeem the property.
3. The applicant alleges that the respondent has not issued statutory notices as required under section 90(2) of the Land Act, neither have they issued a notice of intention to sell pursuant to the provisions of section 96(3) of the Land Act. The applicant further blames the 1st respondent for failing to conduct a valuation in the last 12 months.
4. The application is opposed by the 1st respondent who vehemently denies the issues raised by the applicant. The respondent notes that the applicant indeed confirms that they are indebted to the bank and the applicant even seeks to be advised of the extent of his default.
5. The bank confirms that upon default, they issued a demand to the applicant after which all the necessary notices were sent out and the applicant requested to restructure the facility. The bank acceded to the request. Even after extending this indulgence, the bank claims that the applicant still continued with the default, forcing the bank to move in a second time to realize the security. The bank further confirms that the suit property has also been valued contrary to the allegations by the plaintiff.
Analysis and determination
6. I have carefully considered the pleadings, written submissions and the authorities filed by the rival parties. The issue for determination is whether the applicant has made out a case for the injunctive relief sought.
7. Order 40 Rule 1 of the Civil Procedure Rules 2010 gives the circumstances under which a temporary injunction can be granted by the Court. The conditions that guide the Court in granting such orders are also well crystalized. These were set out in the celebrated case of Giella vs. Cassman Brown & Co. Ltd (1973) E.A 385, at page 360 where Spry J. held that: -
"The conditions for the grant of an interlocutory injunction are ...well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience."
8. On the first condition, this Court is called upon to ascertain whether the applicants have shown a prima facie case following the threshold laid out in Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125. The Court defined a prima facie case as: -
"...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 as to call for an explanation or rebuttal from the latter...a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant's case upon trial. That is clearly a standard which is higher than an arguable case."
9. In determining whether a prima facie case has been demonstrated, I am in turn cognizant of the limitations of enquiry that are permitted of this court at this point in time. The Court of Appeal in Nguruman Ltd v Jan Bonde Nielsen 8 2 Others, [2014] eKLR observed that: -
“In considering whether or not a prima facie case has been established, the Court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation.”
10. From a cursory perusal of the record, I note that the existence of the loan facility is not disputed neither is the request to restructure the facility which was made by the applicant to the bank vide a letter dated 6th December 2022. Contrary to the assertions by the applicant that the bank had failed to inform him of the extent of his outstanding liability, the court notes that there were several letters written to the applicant on diverse dates including 7th February 2022.
11. As far as statutory notices are concerned the court notes that these were issued on 16th May 2022 for Kshs. 1,045,420.01 and 26th April 2023 for Kshs. 1,352,697.23, via registered post. The notices under section 96(2) were equally sent to the applicant also via registered post. The documents produced by the bank include a valuation report dated 16th October 2023. The bank has attached bank statements which the applicant is in receipt of, evidencing the extent of liability.
12. The correspondence to the applicants was sent to postal address 19310-00202, the same address that appears in the offer letter and charge documents. The applicant does not deny the postal address or receipt of the notices evidenced by a certificate of postage.
13. From the totality of the evidence before me, the applicant has failed to meet the threshold required to prove a prima facie case.
14. In Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB Civil Appeal no 77 of 2012 [2014] eKLR the Court stated that if the plaintiff is unable to satisfy this first condition, the issue as to whether damages are sufficient to compensate the plaintiff in the event the suit succeeds as well as the balance of convenience and where that lies, does not arise.
Disposition
15. In the premises I find that the applicant has not made out a case for grant of injunctive orders. I find no merit in the application and the same is dismissed with costs.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 31st DAY OF MAY 2024
F. MUGAMBI
JUDGE