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Delphis Bank Limited v. Praful Natwarlal Shavdia,Virendra Natwarlal Shavdia & Pioneer Stationers Limited

(2005) JELR 97216 (CA)

Court of Appeal  •  Civil Appeal 78 of 2004  •  7 Oct 2005  •  Kenya

Coram
Riaga Samuel Cornelius Omolo, Philip Kiptoo Tunoi, Erastus Mwaniki Githinji

Judgement

JUDGMENT OF THE COURT

This is an interlocutory appeal by the defendant in the suit, THE DELPHIS BANK LIMITED, now the appellant. It is aggrieved by the decision of the High Court of Kenya at Mombasa (Sergon, J) dated 6th November, 2003, whereby the learned Judge granted the three plaintiffs, now the respondents, an order for temporary injunction to restrain the appellant from selling by public auction the property known as Mombasa/Block XXI/506, Flat No.3, Ganjoni, the suit property, on the grounds that the respondents had not been duly served with the mandatory Statutory Notice of Sale under Section 74 of the Registered Land Act (the Act) and Rule 49 of the Auctioneers Rules, 1997.

The facts giving rise to this appeal are simple and largely not in dispute. The respondents were granted an overdraft facility by the appellant and they offered the suit property as security. They each, also, executed personal guarantees for the loan. Default occurred and the appellant sought to recover the …

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