Koileken ole kipolonka orumoi v Mellech Engineering & Construction Limited & 2 others [2015] KEHC 6116 (KLR)

Facts

The Plaintiff, Koileken Ole Kipolonga Orumoi, is the registered owner of a parcel of land known as Title Number Ewaso-Kedong/2154. On or about 12th August, 2011, one of the directors of the 1st Defendant, Mellech Engineering & Construction Limited, requested the Plaintiff to guarantee financial facilities. The Plaintiff agreed to guarantee the facilities on condition that the 1st Defendant could only use the Plaintiff's property as security for a period of three years and that the 1st Defendant would pay the Plaintiff Kshs 150,000.00 every month during the three years.

Issues

1. Whether the Plaintiff has established a prima facie case.
2. Whether the Plaintiff will suffer irreparable damage unless an injunction is granted.
3. Where the balance of convenience lies.
4. Whether the defense of non est factum is available to and has been proved by the Plaintiff.
5. Whether disputes in accounts is a basis for granting an injunction.
6. Whether the 2nd Respondent charged un-contractual interests.
7. Whether a forced sale valuation was done.
8. Whether relevant notices were issued.
9. The rights and obligations of a guarantor.

Reasoning

The Plaintiff is illiterate and signed the instruments by affixing his thumb print, which is not considered a valid defense of non est factum. The Plaintiff's case lacks credibility and the balance of convenience does not favor granting an injunction.

Outcome

The Plaintiff's application for an injunction is dismissed.