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ELCPartially AllowedNot stated in the excerpt (ruling on Defendant's notice of motion dated 22nd March 2017)· [2017] KEELC 1577 (KLR)

Balvinder Pal Singh s/o Surjiit Singh & another v Equity Bank Limited [2017] KEELC 1577 (KLR)

Environment and Land Court
4 October 2017
SKS. M. Kibunja
1,164 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Equity Bank Ltd, the Defendant, moved the court by notice of motion dated 22nd March 2017 seeking discharge, variation or setting aside of the injunctive orders issued on 29th January 2015, punitive costs and any other suitable orders. The application was supported by an affidavit of Steve Biko, the Defendant's credit manager, and opposed through an affidavit of Prithpal Singh Pandhal, a director of the 2nd Plaintiff, which was erroneously headed 'supporting' rather than 'replying'. The court framed three issues: breach of the 29th January 2015 orders, entitlement to review of those orders, and costs. The 2015 ruling had granted the Plaintiffs injunction on condition that they resume and continue payments, warning that the relief would otherwise be discharged at the Defendant's option. The court examined the Interest Rates Advisory Centre report produced by the Plaintiffs and the Defendant's bank statements and schedule showing payments below the contractual Ksh.1,601,957 per month, reversed transactions, dishonoured cheques with no particulars of replacement, and months without payments. It found the Plaintiffs in arrears and in breach of the conditional order. The court allowed the motion only in terms of prayer 3, varying the order of 29th January 2015 to permit the Defendant to issue statutory notices in respect of arrears due or falling due notwithstanding the pending suit, and awarded the Defendant costs of the motion. Judgment delivered by S.M. Kibunja, Environment and Land Judge, on 4th October 2017.

Key legal issues

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01

Whether the Plaintiffs breached the conditional injunctive order of 29th January 2015

Holding

Yes - the Plaintiffs were in arrears and had not fully complied with the conditional order requiring continued payments

Reasoning

The court compared the letter of offer requiring monthly payments of Ksh.1,601,957 with bank statements showing 22 payments of varying amounts, some reversed for insufficient funds, dishonoured cheques with no particulars of replacement, and months with no payments. The Interest Rates Advisory Centre report did not confirm compliance. The earlier finding that the Plaintiffs still owed the Defendant and had no justification to stop paying remained undisturbed.

p. 3
02

Whether the Defendant established a case for review/variation of the order of 29th January 2015

Holding

Yes - to the limited extent of permitting the Defendant to issue statutory notices for arrears notwithstanding the pending suit

Reasoning

Having found breach of the conditional order, the court exercised its discretion in favour of the Defendant but only varied the order under prayer 3, allowing statutory notices for arrears due or falling due. The injunction was not discharged or set aside outright; the suit remained pending.

p. 3

Legal principles established

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  • A party granted conditional injunctive relief who fails to comply with the conditions may have the injunction varied or discharged at the instance of the other party.
  • An expert report that does not confirm compliance with a court order does not amount to a variation of that order.

Court orders

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  1. 1.Prayer 3 of the Defendant's notice of motion dated 22nd March 2017 allowed to the extent that the injunctive order of 29th January 2015 is varied to allow the Defendant to be at liberty to issue the Plaintiffs with statutory notices in respect of any arrears of payments that have fallen due or may fall due, notwithstanding the suit being pending in court.
  2. 2.Defendant awarded costs of the notice of motion.
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a pending banking/land-related suit (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Balvinder Pal Singh s/o Surjiit Singh & another v Equity Bank Limited [2017] KEELC 1577 (KLR)", Case Analysis (2017). Not stated in the excerpt (ruling on Defendant's notice of motion dated 22nd March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1577/eng@2017-10-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.