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REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATES COURT
AT RONGWE
CIVIL SUIT NO.
OF 2015
1. CAIN WAKA SINGH
2. JESIKA WAKA SINGHPLAINTIFFS
VERSUS
KULA LINK BANK LTD.DEFENDANT
PLAINT
FAST TRACK
1. The 1st plaintiff is a male adult of sound mind, residing and/or working for gain in Matata
within Rongwe County in the aforesaid Republic. His address of service for purposes of
this suit shall henceforth be care of M/s LELO BANALOLA & COMPANY
ADVOCATES, OMARCO HOUSE, 1ST FLOOR, P.O. BOX 84166-80100, NAIROBI.
2. The 2nd Plaintiff is a female adult of sound mind, and the 1 st Plaintiffs legal wife residing
in Matata within Rongwe County.. Her address for service shall be as the 1 st plaintiffs,
being care of M/s LELO BANALOLA & COMPANY ADVOCATES, OMARCO
HOUSE, 1ST FLOOR, P.O. BOX 84166-80100, NAIROBI.
3. At all material times to this suit the 1 st plaintiff was/is the registered proprietor owner, of
land reference no. MATATA/RONGWE/1043, situate at Matata within Rongwe County,
the suit premises herein.
4. The 1st plaintiff avers that on or around September 2012, he entered into a loan
agreement with the Defendant for Ksh. 1,000,000/- at agreed upon interest rates.
5. The Defendant has subsequently issued the plaintiff with a notice of sale by public
auction of his property without having granted him the chance to redeem the property by
repaying the loan taken.
6. The plaintiffs aver that the charge of the property is null and void for want of spousal
consent, as no consent to charge the property was given by the wife, the 2 nd plaintiff
herein.
7. The Defendant actions herein are unlawful and/or illegal and/or unprocedural and/or
without any colour of right, whatsoever and thus the plaintiff humbly request the Court to
intervene in this matter as the Defendant has no proprietary rights or interest over the
portion of land.
8. The plaintiff avers and maintains that there is no other suit pending in any court over the
same subject matter between the same parties, neither has there been any suit involving
the same.
9. The cause of action arose in Matata within Rongwe, which is within the jurisdiction of
this Honourable Court.
REASONS WHEREFORE the plaintiff prays for judgment against the Defendant for:a) A permanent injunction restraining the Defendant through himself and/or his agents
and/or his servants and/or his employees or whoever acting on the Defendants behalf
from advertising and/or auctioning and/or selling L.R. NO. MATATA/RONGWE/1043,
situate at Matata within Rongwe County and/or dealing with the suit property in any
manner, whatsoever detrimental to the rights and interest of the plaintiff herein.
b) Mandatory Injunction ordering and/or directing the Defendant to stop the proposed sell
by public auction of L.R. NO. MATATA/RONGWE/1043 pending the hearing and
determination of the suit.
c) Costs of this suit
Dated at Nairobi thisday of2015.
TO BE SERVED UPON.
JEPTUM CHIRCHIR & CO.
ADVOCATES
KENYA HOUSE
MONROVIA ST
P.O.BOX 73011-0020
NAIROBI.
REPUBLIC OF KENYA
REPUBLIC OF KENYA
3. That the plaintiff stands to suffer loss and irreparable damage if the property is sold
as intended by the Defendants and the land parcel is his only source of livelihood and
upon which he has established homestead and other developments.
4. That this Honourable Court ought to come to the rescue of the
plaintiff/applicant and issue injunctive orders as prayed.
5. That the prayers sought for by the plaintiff/applicant are meant to preserve the status
quo and will not in any way prejudice the defendant's case, if any
WHICH SAID GROUNDS are further supported by the annexed affidavit of JESIKA WAKA
SINGH, the 2nd Plaintiff/Applicant herein and on other or further grounds to be adduced at the
hearing thereof.
DATED at Rongwe this..day of ..2015.
LELO BANALOLA& COMPANY
ADVOCATES FOR THE PLAINTIFF/APPLICANT
DRAWN & FILED BY
LELO BANALOLA & COMPANY
ADVOCATES
FAIRLING BUILDING, 1ST FLOOR,
MASAKU-KITUI HIGHWAY,
P.O. BOX 111-00100,
NAIROBI .(lelobanalolaadvocates@yahoo.com); 041-2319753.
TO BE SERVED UPON.
JEPTUM CHIRCHIR & CO.
ADVOCATES
KENYA HOUSE
MONROVIA ST
P.O.BOX 73011-00200
NAIROBI
NOTICE: If any party served does not appear at the time and place above
mentioned such Orders will be made and proceedings taken as the
Court may think just and expedient
REPUBLIC OF KENYA
IN THE MATATA ENVIRONMENT AND LAND COURT
AT RONGWE
TO BE SERVED UPON.
JEPTUM CHIRCHIR & CO.
ADVOCATES
KENYA HOUSE
MONROVIA ST
P.O.BOX 73011-00200
NAIROBI
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
CIVIL SUIT NO OF 2015
1. CAIN WAKA SINGH
2. JESIKA WAKA SINGH.PLAINTIFFS/APPLICANTS
VERSUS
KULA LINK BANK
LTD.DEFENDANT/RESPONDENT
THE PLAINTIFFS/APPLICANTS WRITTEN SUBMISSION IN SUPPORT OF THE
NOTICE OF MOTION APPLICATION DATED 1ST MAY, 2015
May it please your Honour!
On behalf of the Plaintiffs/Applicants herein, we wish to submit that the Plaintiffs/Applicants
Injunctive Notice of Motion Application dated 1st May, 2015 is meritous and thus should be
allowed with costs.
(a) Background
Your Honour, the Plaintiffs/Applicants commenced this suit and filed the present application for
injunctive Orders to prevent the Defendant/Respondent from advertising and/or selling of the
plaintiffs/applicants property, being L.R. NO. MATATA/RONGWE/1043, following imminent
threats of sale of the said property by the defendants.
(b) Documentary evidence
Your Honour, the plaintiffs/applicants attached a bundle of documents to her supporting affidavit
to prove ownership of the suit premises. To this, we refer your Honour to the ownership
documents appearing on pages _to _of the 2nd plaintiffs/Applicants supporting affidavit sworn
and filed on 1st May, 2015.
In his reply, your Honour, the Defendant/Respondent filed a Replying Affidavit sworn and filed
on 2nd May, 2015, in which he alleges that he entered into a loan agreement with the 1 st
plaintiff/applicant creating a charge on his land. That their was no indication that the land was
matrimonial property and that even if it was, spousal consent was immaterial. Further the
defendant filed a bundle of documents consisting of a charge, loan agreement, notice to sale
among others.
Your Honour, from the bundle of documents filed, the defendant seems to allege that he has a
right to sale the plaintiffs property since there had been no violation of the terms of the loan
agreement and that the law was followed.
(c) Analysis
Your Honour, where one charges matrimonial property without execution of the chargors spouse
or any indication that it has been assented to. The suit land herein is matrimonial property yet
no spousal consent was obtained. Section 79 (3) of the Land Act, Act No. 6 of 2012, provides as
follows:S. 79 (3) A charge of a matrimonial home, shall be valid only if any document or form used in
applying for such a charge, or used to grant the charge, is executed by the chargor and any
spouse of the chargor living in that matrimonial home, or there is evidence from the document
that it has been assented to by all such persons.
Your Honour, the statutory notice purportedly served upon the plaintiffs/applicants contains
interest rates that are not contained in the agreement. Section 80(3) of the Land Act is a
mandatory provision of the law. The details under this section are not contained in the charge
before the Court. Therefore, the Charge is defective, null and void. In the circumstances, the said
charge does not afford the Defendant the powers reserved for chargees in the Land Act and the
Chargee cannot exercise any power of sale on that charge. We rely on the case of MMella vs.
Savings and Loan (K) Limited [2007] 2 EA 316 (CAK) where the Court of Appeal stated:
.could one say that because the charge was not valid, the appellant was released from his
duties under the charge? The answer is, in our view, yes, during the period when the charge
remained invalid. But we make haste to add that the appellant was only released from his
duties under the charge and not under the contract.
Additionally, the notice was not served upon the plaintiffs. The paintiffs categorically denie ever
being served with the notice. It is upon the defendant to prove that they served and that there was
proper service, which they havent. See Nyangilo Ochieng & Another v Kenya Commercial
Bank, Court of Appeal at Kisumu, Civil Appeal No. 148 of 1995 (1996) eKLR where the Court
of Appeal stated as follows :It is for the chargee to make sure that there is compliance with the requirements of s.74 (1)
of the Registered Land Act. That burden is not in any manner on the chargor. Once the
chargor alleges non-receipt of the statutory notice it is for the chargee to prove that such
notice was in fact sent.
In any case your Honour, the notice is fatally defective since different dates are indicated in the
statutory notice and in the advertisement. (Attached is the notice marked JWS-4 and the
advertisement marked JWS-5)
Your Honour, due to the foregoing the chargees equitable right of redemption had not arisen for
want of a proper statutory notice, and further that the sale is premature. If the sale of the suit
property is carried through in the absence of a proper Notice to sell it will amount to a clog on
the Chargors Equity of Redemption. See Albert Mario Cordeiro & another v Vishram Shamji
[2015] eKLR, Civil Suit 329 of 2014.
d) Conclusion
Your Honour, we therefore pray that the defendant be barred from proceeding to offer for sale
the suit land based on the purported statutory notice or the purported Notification of Sale of the
suit land. Further your Honour, we seek that the plaintiffs/applicants are not saddled with the
auctioneers charges for the sale intended.
We also seek that
defendant/respondent.
costs
be
provided
for
the
plaintiffs/applicants
against
the
Your Honour, be guided by the authorities adduced and find it fit to grant the
plaintiffs/applicants prayers as prayed for.
Thank you.
Thats all, your Honour!