MARTIN MUIRURI NDUNG’U & ANOTHER v HOUSING FINANCE OF KENYA & 2 OTHERS [2007] KEHC 2224 (KLR)
- Court
- High Court of Kenya
- Case number
- 2224
- Citation
- [2007] KEHC 2224 (KLR)
- Decided
- 22 February 2007
The plaintiffs have made out a prima facie case against the defendants for fraud and sale at an undervalue. The subject matter of the suit is preserved until the suit is heard and determined. The 2nd and 3rd defendants are restrained from any further dealings with the suit property until the suit is heard and determined.
Facts
The plaintiffs bought a property for KShs. 3,400,000, with the defendant Housing Finance of Kenya financing KShs. 1,840,000. The plaintiffs executed a legal charge on the property. The defendant re-scheduled the loan in November 2005, but the plaintiffs were unaware of the sale of the property until a letter from the 2nd and 3rd defendants asked them to vacate the property. The plaintiffs sought an injunction to restrain the defendants from dealing with the property.
Issues
- Whether the sale of the property was illegal, null and void.
- Whether the defendants were guilty of fraud and misrepresentation.
- Whether the plaintiffs should be restrained from dealing with the property until the suit is heard and determined.
Reasoning
The plaintiffs' assertion that the sale was illegal, null and void is not supported by evidence. However, the plaintiffs have made a prima facie case for fraud and sale at an undervalue. The defendants' sale of the property was not in accordance with the statutory notice, which could be interpreted as allowing the defendant to realise the security without giving a new statutory notice.
Outcome
The plaintiffs' application for an injunction is granted.
Orders
- The 2nd and 3rd defendants are restrained from any further dealings with the suit property until the suit is heard and determined.
- The 1st defendant is directed to either convert the plaintiffs' account into an interest-earning account or place the funds therein to another interest-earning account.
Remedies
- Injunction to restrain the defendants from dealing with the property until the suit is heard and determined.
Authorities cited
Legislation (1)
- Transfer of Property Act
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