Court of Appeal-injunction/stay Rule 1 (3) and 47 CAR
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI
CIVIL APPLICATION NO. NAI OF 2016
CAIN WAKA SINGH……………………..………….…. . …… 1st APPLICANT
JESIKA WAKA SINGH …………………….………… ….. …. 2nd APPLICANT
VERSUS
KULA LINK BANK LTD……………………………………. ……RESPONDENT
Being an application for an injunction and/or a stay of the orders of the Land and
Environment Court pending the lodging, hearing and determination of an intended
Appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Mr. Justice
Tom Kimani) given on 15thth June 2015 in Land and Environment Court, Civil Case
347of 2015
BETWEEN
CAIN WAKA SINGH…………………………….. PLAINTIFF
AND
JESIKA WAKA SINGH …………………………….. 2ND PLAINTIFF
KULA LINK BANK LTD…………………………………DEFENDANT
CERTIFICATE OF URGENCY
We, Lelo Banalola & Co. Advocates, Advocates for the Applicant herein, do certify that the
application filed herein under Rules 1(3) and 47 of the Court of Appeal Rules is urgent on the
ground that the Applicant who has sought an injunction restraining the respondent from
exercising their statutory power of sale and selling their charged matrimonial home in pursuance
of the dismissal by the Land and Environmental Court, Civil Suit No. 347 of 2015, will suffer great
prejudice and loss if the sale takes place as scheduled on ………………….. The Applicants’ injunction
application has been allocated a date on …………………. by which time the matrimonial home will
have been sold and the application will be rendered nugatory. .
WHICH CERTIFICATE is further supported by the annexed Affidavit sworn by Jamila Nuclear
Smith, Advocate, and on such further or other grounds as may be adduced at the hearing hereof.
DATED at Nairobi this day of 2016.
LELO BANALOLA AND COMPANY ADVOCATES
ADVOCATES FOR THE APPLICANT
DRAWN & FILED BY:
LELO BANALOLA & CO. ADVOCATES
FAIRLING BUILDING, 1ST FLOOR
MASAKU-KITUI HIGHWAY
TO BE SERVED UPON:
ABC & COMPANY ADVOCATES
ORIENTAL BUILDING
MOI AVENUE
P.O. BOX 345-00100
NAIROBI
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI
CIVIL APPLICATION NO. NAI OF 2016
CAIN WAKA SINGH……………………..………….…. . …… 1st APPLICANT
JESIKA WAKA SINGH …………………….………… ….. …. 2nd APPLICANT
VERSUS
KULA LINK BANK LTD……………………………………. ……RESPONDENT
Being an application for an injunction and/or a stay of the orders of the Land and
Environment Court pending the lodging, hearing and determination of an intended
Appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Mr. Justice
Michael Kimani) given on 15thth June 2015 in Land and Environment Court, Civil Case
347of 2015
BETWEEN
CAIN WAKA SINGH…………………………….. PLAINTIFF
AND
JESIKA WAKA SINGH …………………………….. 2ND PLAINTIFF
KULA LINK BANK LTD…………………………………DEFENDANT
AFFIDAVIT IN SUPPORT OF URGENCY
I, Jamila Nuclear Smith, residing along Kiambu Road and of Post Office Box Number 1743,
00100 Nairobi in the Republic of Kenya hereby make oath and state as follows:-
1. THAT I am an Advocate of the High Court of Kenya practising as a Partner in the firm of
Lelo Banalola Company who have the conduct of this matter on behalf of Cain Waka Singh
and Jesika Waka Singh, the Applicants herein.
2. THAT in my capacity aforesaid, I have full knowledge and information concerning this suit
and I have the Applicants’ authority to swear this affidavit on their behalf.
3. THAT this suit was instituted by the 1st and 2nd Applicants against the Respondent on
…………….
4. THAT the 3RD Respondent filed a Defence on …………………………..
5. THAT on ………………………….. the case was dismissed by the Honourable Justice Michael
Kimani upon an application filed by the Respondent on …………………………….
Consequently, Judgment was entered against Plaintiffs as in favour of the defendant with
costs.
6. THAT in an attempt to realise this dismissal, the Respondent obtained an Order on
…………………… to sell the property known as L.R …………………….. occupied by the 1st and
2nd Applicants. The settling of terms and conditions of sale took place on ………………………
7. THAT on ………………………………. the Applicant filed an Application under Certificate of
Urgency seeking, the following orders:
(a) That the court do issue a stay of orders of the Land and Environment Court by
Honourable Justice Michael Kimani pending the hearing of this application inter
parties.
(b) That a temporary injunction do issue to restrain the sale of the aforementioned
properties pending the hearing and determination of the Application.
(c) That a temporary injunction do issue to restrain the sale of the aforementioned
properties pending the hearing and determination of the intended Appeal.
8. THAT on ………………………., we received a letter from the Deputy Registrar inviting us to
fix a hearing date for our application on …………………………..
9. THAT I am informed by the Clerk, that on the ………………………, a hearing date was taken
by consent for …………………….
10. THAT ……………………………., I noticed in the Daily Nation, an advertisement indicating
that the property that is at the centre of this dispute would be sold by public auction
on…………………...
Annexed hereto at the exhibit marked “PP1” is a true copy of the said advertisement.
11. THAT in these circumstances, it is clear that by the time our injunction application is
heard on …………………………, the sale will have taken place and the property will be out
of the applicant’s reach forever.
12. THAT I swear this Affidavit in support of the Applicant’s prayer that the application dated
…………………………. and filed in Court on ………………………………. be heard before the
………………………………., taking into account the urgency of the matter.
13. THAT what is deponed to hereinabove is true to the best of my knowledge save as to
matters deponed to on belief, grounds whereupon have been given and matters deponed
to on information, the sources whereof have been disclosed.
SWORN by the said JAMILA NUCLEAR SMITH )
)
At NAIROBI this day of 2016 )
)
)
)
)
BEFORE ME )
)
)
COMMISSIONER FOR OATHS )
DRAWN & FILED BY:
LELO BANALOLA & CO. ADVOCATES
FAIRLING BUILDING, 1ST FLOOR
MASAKU-KITUI HIGHWAY
TO BE SERVED UPON:
ABC & COMPANY ADVOCATES
ORIENTAL BUILDING
MOI AVENUE
P.O. BOX 345-00100
NAIROBI
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI
CIVIL APPLICATION NO. NAI OF 2016
CAIN WAKA SINGH……………………..………….…. . …… 1st APPLICANT
JESIKA WAKA SINGH …………………….………… ….. …. 2nd APPLICANT
VERSUS
KULA LINK BANK LTD……………………………………. ……RESPONDENT
Being an application for an injunction and/or a stay of the orders of the Land and
Environment Court pending the lodging, hearing and determination of an intended
Appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Mr. Justice
Michael Kimani) given on 15thth June 2015 in Land and Environment Court, Civil Case
347of 2015
BETWEEN
CAIN WAKA SINGH…………………………….. PLAINTIFF
AND
JESIKA WAKA SINGH …………………………….. 2ND PLAINTIFF
KULA LINK BANK LTD…………………………………DEFENDANT
NOTICE OF MOTION
(Under Rules 1 (3) and 47 of the Court of Appeal Rules)
TAKE NOTICE that on the day of 2002 at 9.00 o’clock in the
forenoon or as soon thereafter as they can be heard, Messrs. Lelo Banalola & Company,
Advocates for the above named Applicant will move this Honourable Court FOR
ORDERS:
1. THAT the hearing date of the application dated …………………… be brought forward from
……………………… to a date before the ……………………………..
2. THAT the costs of this application be provided for.
ON THE GROUNDS THAT:
1. Since the filing of the application dated ……………………………, the Respondent has
advertised the property for sale on ………………. Unless the said application which seeks
a stay of orders, of the Ruling of the Learned Judge Kimani is heard as a matter of urgency,
the property forming the subject matter of the Application will be sold and removed from
the applicants reach forever.
2. Unless the application dated …………………….. is heard before the …………………………, the
application and indeed the intended Appeal will be rendered nugatory.
3. The balance of convenience clearly weighs in favour of the Applicants in this matter owing
to the importance of the property in question.
This application is supported by the affidavit of Cain Waka Singh sworn on the
day of and annexed hereto.
The address for service of the Applicants is care of Lelo Banalola & Co Advocates, Fairling
Building, 1st Floor Masaku-Kitui Highway. P.O BOX ……………………………………….. Nairobi.
LELO BANALOLA & COMPANY
ADVOCATES FOR THE APPLICANTS
Lodged at the Nairobi Registry on the day of .
DRAWN & FILED BY:
LELO BANALOLA & CO. ADVOCATES
FAIRLING BUILDING, 1ST FLOOR
MASAKU-KITUI HIGHWAY
TO BE SERVED UPON:
ABC & COMPANY ADVOCATES
ORIENTAL BUILDING
MOI AVENUE
P.O. BOX 345-00100
NAIROBI
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI
CIVIL APPLICATION NO. NAI OF 2016
CAIN WAKA SINGH……………………..………….…. . …… 1st APPLICANT
JESIKA WAKA SINGH …………………….………… ….. …. 2nd APPLICANT
VERSUS
KULA LINK BANK LTD……………………………………. ……RESPONDENT
Being an application for an injunction and/or a stay of the orders of the Land and
Environment Court pending the lodging, hearing and determination of an intended
Appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Mr. Justice
Michael Kimani) given on 15thth June 2015 in Land and Environment Court, Civil Case
347of 2015
BETWEEN
CAIN WAKA SINGH…………………………….. PLAINTIFF
AND
JESIKA WAKA SINGH …………………………….. 2ND PLAINTIFF
KULA LINK BANK LTD…………………………………DEFENDANT
AFFIDAVIT
I, CAIN WAKA SINGH, residing at Road and of P.O BOX ………………………, in the
Republic of Kenya hereby make oath and state as follows:-
1. THAT I am an adult of sound mind working for gain and residing in …………………… within
the Republic of Kenya.
2. THAT the second applicant (Jesika Waka Singh) is my wife, legally married under the
Laws of the Republic of Kenya.
3. THAT we are the occupants and proprietors of L/R ……………………… situated
in……………………. within …………………. In the Republic of Kenya.
4. THAT the property was bought and registered under my name.
5. THAT we have lived in the property for …………………. and we consider it our matrimonial
property.
6. THAT I obtained a loan of Ksh 1,000,000 from the respondent for a period of three years
using the said matrimonial property on ………………………….
7. THAT the respondent didn’t at any point ask for spousal consent to facilitate the
transaction.
8. THAT at all material times, I did not disclose to my wife that our matrimonial property
was the security for that particular charge neither did the respondent.
9. THAT the terms of payment of the loan were at 5 per cent per annum as per the loan
agreement as duly signed by me and the respondent on ……………………………
10. THAT the respondent went ahead to vary the interest rates to 12 per cent per annum
without due notice.
11. THAT the amount radically increased to Ksh. 5,000,000 as of ………………………………………
12. THAT as a result of this radical variation of the loan interest rates by the Respondent, I
was unable to repay the loan.
13. THAT since then the bank has been threatening to exercise its statutory power of sale of
my matrimonial home.
14. THAT I commenced proceedings at the Matata Land and Environmental Court in Rongwe
through the plaint dated ………………………….
15. THAT the matter was dismissed by Honourable Justice Kimani on …………………………..
16. THAT pursuant thereto, the respondent made an Application for orders to carry on their
statutory power of sale of L/R on……………………….. The Application was granted ex parte
on…………………………………………..
17. THAT on ………………………………………. I noticed an advertisement in the Daily Nation
indicating that the property that forms the subject matter of this dispute is set to be
auctioned on ……………………….
Annexed hereto at the exhibit marked “RD1” is a true copy of the said advertisement.
18. THAT I then instructed our advocates on record to urgently lodge an injunction
Application in this court which they did on………………... against the sale of the property
and the Application be certified as urgent.
19. THAT if the respondent continue with their statutory power of sale, the property will be
out of my reach, and hence this Application will be nugatory.
20. THAT I verily believe that in the interest of the Applicant, that this application be granted
and the hearing be brought forward from ……………………. to a date before
………………………………..
21. THAT what I have deponed to hereinabove is true to the best of my knowledge save as
to matters deponed to on information sources whereof have been disclosed and matters
deponed to on belief the grounds whereupon have been given.
SWORN by the said CAIN WAKA SINGH )
)
At NAIROBI this day of )
)
2016 )
)
)
)
)
BEFORE ME JAMILA NUCLEAR SMITH )
)
)
)
)
COMMISSIONER FOR OATHS )
DRAWN & FILED BY:
LELO BANALOLA & CO. ADVOCATES
FAIRLING BUILDING, 1ST FLOOR
MASAKU-KITUI HIGHWAY
