Simiyu v Fidelity Commercial Bank Ltd (Miscellaneous Civil Suit 658 of 2012) [2016] KEHC 983 (KLR) (Commercial & Admiralty) (3 November 2016) (Ruling)

Facts

The plaintiff, Jimmy Wafula Simiyu, applied for an injunction to stop the defendant, Fidelity Commercial Bank Ltd, from selling a parcel of land by public auction or private treaty sale. The plaintiff had taken a loan from the defendant and a charge over the land was created as security. The plaintiff defaulted in payments and the defendant exercised its statutory power of sale. The plaintiff sought to resuscitate the suit and the court issued an order of injunction.

Issues

1. Whether the defendant's sale of the land is in violation of the Land Act 2012
2. Whether the plaintiff's default in payments justifies the defendant's exercise of its statutory power of sale
3. Whether the plaintiff's application for leave to amend the plaint is granted

Reasoning

The court found that the plaintiff had not demonstrated a prima facie case with a probability of success and that the defendant's exercise of its statutory power of sale was justified. The court also found that the plaintiff's complaint about the valuation of the property was not supported by evidence.

Outcome

The application for injunction was dismissed with costs.

Authorities cited