Mohamed Hassan Ali v Joseph Kariuki Kibaara [2018] KEELC 2774 (KLR)
The bottom line
#A Mombasa court refused to stop a bank from selling a borrower's property because the borrower admitted default and failed to prove the bank's figures were wrong.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
Plaintiff failed to demonstrate a prima facie case with probability of success; email of 7th February 2017 from its director admitted default, so the statutory notice issued on 14th March 2017 was not premature.
The court applied the Giella test and Mrao's definition of a prima facie case. The director's email admitting default and promising to regularise the account within thirty days undermined the claim of no arrears. The statutory notice issued after accrual of the Defendant's rights was therefore valid.
Irreparable injury
Plaintiff failed to show injury not compensable by damages.
Relying on Ooko v Barclays Bank of Kenya, the court held the onus lies on the Applicant to show irreparable injury not compensable by an award of damages, and found the Plaintiff made no attempt to demonstrate irreparable loss, being content to rely on the alleged prima facie case.
Mandatory interlocutory injunction to compel giving of accounts
Refused; not a strong and straightforward case warranting the exceptional remedy.
Citing Showind Industries, the court held that interlocutory mandatory injunctions are granted sparingly and only in exceptional circumstances where the Applicant's case is very strong and straightforward, and where the Applicant's conduct meets the approval of a court of equity. The Plaintiff's case did not meet this test.
Balance of convenience
Tilts in favour of the Defendant; Plaintiff failed to discharge the burden.
Applying Paul Gitonga Wanjau v Gathuto Tea Factory Co. Limited, the court held the burden of proving that the inconvenience to the Applicant if the injunction is refused is greater than that to the Respondent if granted lies on the Applicant, and found the Plaintiff failed to discharge it.
Legal principles established
#- A dispute as to accounts is not a sufficient ground to restrain a chargee from exercising its statutory power of sale.
- Illegal interest as a basis for granting an injunction must be supported by clear and sufficient evidence tabled in court by the Applicant.
Court orders
#- 1.The Notice of Motion dated 11th August 2017 is dismissed.
- 2.Costs of the application awarded to the Defendant/Respondent.
- Jurisdiction invoked
- Order 40 Rules 1 and 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (inherent jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Hassan Ali v Joseph Kariuki Kibaara [2018] KEELC 2774 (KLR)", Case Analysis (2018). Notice of Motion dated 11th August 2017 (suit filed 14th August 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2774/eng@2018-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.