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Kenya Commercial Bank Ltd v. Kipsang Sawe Sisei

(2005) JELR 100075 (CA)

Court of Appeal  •  Civil Appeal 53 of 2002  •  10 Jun 2005  •  Kenya

Coram
Riaga Samuel Cornelius Omolo, Philip Nyamu Waki, Erastus Mwaniki Githinji

Judgement

JUDGMENT OF THE COURT

The appellant, Kenya Commercial Bank Ltd (Bank) appeals against the order of the superior court (Osiemo J) dated 18th January, 2002 dismissing with costs its application dated 14th November, 2001 seeking to set aside an ex parte order of injunction in favour of the respondent herein, made on 8th November, 2001.

On 31st October, 1997, the respondent as a quarantor to M/s. PENGUIN ENGINEERING LIMITED, the Borrower, executed a legal charge over his land Title Number Moi’s Bridge/Ziwa/Block 12/Cheukta/60 in favour of the Bank to secure an overdraft of Shs.700,000/= advanced to the borrower.The borrower defaulted in repayment of the overdraft and the Bank advertised the respondent’s land for sale by public auction on 23rd October, 2001. On 22nd October, 2001, a day before the scheduled public auction of the charged property, the respondent filed a suit against the Bank seeking two reliefs, namely, an order of injunction to restrain the sale of the property and a declara…

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