JUDGMENT OF THE COURT
At all material times the appellant, Nahashon Kariuki Mbatia was the registered proprietor under the Registered Land Act (Cap 300, Laws of Kenya, now repealed) of the property known as NAIROBI/BLOCK 72/989, situate in Jambo Estate. By a charge dated 4th December, 1997 and registered on 5th December, 1997, the appellant charged his said property to the Housing Finance Company of Kenya to secure a loan of KShs.2,500,000/=. The appellant did not service the said loan, and on 14th May, 2001, the respondent served upon him a statutory notice under section 74 of the Registered Land Act and subsequently advertised the property for sale by public auction.
On 9th July 2001, the appellant filed a suit in the High Court of Kenya at Nairobi, seeking a declaration that the intended sale of the property was unlawful and an order of injunction to restrain the respondent from selling the property. He also prayed for costs of the suit. The appellant’s suit was founded on the averme…