REPUBLIC OF KENYA

IN THE PRINCIPAL MAGISTRATES COURT

AT RONGWE
CIVIL SUIT NO.
OF 2015
1. CAIN WAKA SINGH
2. JESIKA WAKA SINGHPLAINTIFFS/APPLICANTS
VERSUS
KULA LINK BANK LTD.DEFENDANT/RESPONDENT
CERTIFICATE OF URGENCY
I, JAMILLA N. SMITH, an Advocate of the High Court of Kenya, practicing as such in the
name and style of M/s Lela Banalola & Co. Advocates, Nairobi having the conduct of this
matter, do certify this matter as extremely urgent.
The reasons for the urgency are:1. THAT the Defendant/Respondent has engaged the services of an advertising company to
sell through public auction the matrimonial property of the plaintiffs.
2. THAT unless the Defendants/Respondents unlawful activities herein are stopped by an
Order of this Court, the Plaintiff/Applicant shall suffer irreparable loss and damage or
great prejudice as the Defendant/Respondent is plotting to unlawfully sell the said
matrimonial property.
3. THAT for the above said reasons, this application ought to be heard urgently and orders
issued immediately.
Dated at Nairobi this day of .. 2015.
LELO BANALOLA & COMPANY
ADVOCATES FOR THE PLAINTIFFS/APPLICANTS
DRAWN & FILED BY
LELA BANALOLA& COMPANY
ADVOCATES,
FAIRLING BUILDING, 1ST FLOOR,
MASAKU-KITUI HIGHWAY,
P.O BOX 111-00100,
NAIROBI.(kengaadvocates@yahoo.com); Tel No. 041-2319753.

REPUBLIC OF KENYA
IN THE PRINCIPAL MAGISTRATES COURT
AT RONGWE
CIVIL SUIT NO.
OF 2015
1. CAIN WAKA SINGH
2. JESIKA WAKA SINGHPLAINTIFFS
VERSUS
KULA LINK BANK LTD.DEFENDANT
PLAINT
FAST TRACK
1. The 1st plaintiff is a male adult of sound mind, residing and/or working for gain in Matata
within Rongwe County in the aforesaid Republic. His address of service for purposes of
this suit shall henceforth be care of M/s LELO BANALOLA & COMPANY
ADVOCATES, OMARCO HOUSE, 1ST FLOOR, P.O. BOX 84166-80100, NAIROBI.
2. The 2nd Plaintiff is a female adult of sound mind, and the 1 st Plaintiffs legal wife residing
in Matata within Rongwe County.. Her address for service shall be as the 1 st plaintiffs,
being care of M/s LELO BANALOLA & COMPANY ADVOCATES, OMARCO
HOUSE, 1ST FLOOR, P.O. BOX 84166-80100, NAIROBI.
3. At all material times to this suit the 1 st plaintiff was/is the registered proprietor owner, of
land reference no. MATATA/RONGWE/1043, situate at Matata within Rongwe County,
the suit premises herein.
4. The 1st plaintiff avers that on or around September 2012, he entered into a loan
agreement with the Defendant for Ksh. 1,000,000/- at agreed upon interest rates.
5. The Defendant has subsequently issued the plaintiff with a notice of sale by public
auction of his property without having granted him the chance to redeem the property by
repaying the loan taken.
6. The plaintiffs aver that the charge of the property is null and void for want of spousal
consent, as no consent to charge the property was given by the wife, the 2 nd plaintiff
herein.
7. The Defendant actions herein are unlawful and/or illegal and/or unprocedural and/or
without any colour of right, whatsoever and thus the plaintiff humbly request the Court to
intervene in this matter as the Defendant has no proprietary rights or interest over the
portion of land.
8. The plaintiff avers and maintains that there is no other suit pending in any court over the
same subject matter between the same parties, neither has there been any suit involving
the same.

9. The cause of action arose in Matata within Rongwe, which is within the jurisdiction of
this Honourable Court.
REASONS WHEREFORE the plaintiff prays for judgment against the Defendant for:a) A permanent injunction restraining the Defendant through himself and/or his agents
and/or his servants and/or his employees or whoever acting on the Defendants behalf
from advertising and/or auctioning and/or selling L.R. NO. MATATA/RONGWE/1043,
situate at Matata within Rongwe County and/or dealing with the suit property in any
manner, whatsoever detrimental to the rights and interest of the plaintiff herein.
b) Mandatory Injunction ordering and/or directing the Defendant to stop the proposed sell
by public auction of L.R. NO. MATATA/RONGWE/1043 pending the hearing and
determination of the suit.
c) Costs of this suit
Dated at Nairobi thisday of2015.

LELO BANALOLA & COMPANY

ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY

LELA BANALOLA& COMPANY
ADVOCATES,
FAIRLING BUILDING, 1ST FLOOR,
MASAKU-KITUI HIGHWAY,
P.O BOX 111-00100,
NAIROBI. (lelobanalolaadvocates@yahoo.com); 041-2319753.

TO BE SERVED UPON.
JEPTUM CHIRCHIR & CO.
ADVOCATES
KENYA HOUSE
MONROVIA ST
P.O.BOX 73011-0020
NAIROBI.

REPUBLIC OF KENYA

IN THE PRINCIPAL MAGISTRATES COURT

AT RONGWE
CIVIL SUIT NO.
OF 2015
1. CAIN WAKA SINGH
2. JESIKA WAKA SINGHPLAINTIFFS/APPLICANTS
VERSUS
KULA LINK BANK LTD.DEFENDANT/RESPONDENT
CERTIFICATE OF URGENCY
I, JAMILLA N. SMITH, an Advocate of the High Court of Kenya, practicing as such in the
name and style of M/s Lela Banalola & Co. Advocates, Nairobi having the conduct of this
matter, do certify this matter as extremely urgent.
The reasons for the urgency are:4. THAT the Defendant/Respondent has engaged the services of an advertising company to
sell through public auction the matrimonial property of the plaintiffs.
5. THAT unless the Defendants/Respondents unlawful activities herein are stopped by an
Order of this Court, the Plaintiff/Applicant shall suffer irreparable loss and damage or
great prejudice as the Defendant/Respondent is plotting to unlawfully sell the said
matrimonial property.
6. THAT for the above said reasons, this application ought to be heard urgently and orders
issued immediately.
Dated at Nairobi this day of .. 2015.
LELO BANALOLA & COMPANY
ADVOCATES FOR THE PLAINTIFFS/APPLICANTS
DRAWN & FILED BY
LELA BANALOLA& COMPANY
ADVOCATES,
FAIRLING BUILDING, 1ST FLOOR,
MASAKU-KITUI HIGHWAY,
P.O BOX 111-00100,
NAIROBI.(kengaadvocates@yahoo.com); Tel No. 041-2319753.

REPUBLIC OF KENYA

IN THE MATATA ENVIRONMENT AND LAND COURT

AT RONGWE
CIVIL SUIT NO. 19 OF 2015
1. CAIN WAKA SINGH
2. JESIKA WAKA SINGH.PLAINTIFFS/APPLICANT
VERSUS
KULA LINK BANK LTD.DEFENDANT/RESPONDENT
NOTICE OF MOTION
Under Order 40 Rule s 1 & 2 and Order 51 Rule 1 and Section 3A & 63 (e), 1A and 1B of the
Civil Procedure Act Cap 21 Laws Of Kenya and all enabling Acts and Provisions of Laws
TAKE NOTICE that this Honourable Court shall be moved on the day
of..2015 at 8.30 oclock or soon thereafter as the matter may be reached for
the Counsel for the Plaintiff/Applicant to be heard for the following Orders:1. That this application be certified as urgent and be heard Ex-parte in the first
instance.
2. That pending the hearing of this application inter-parties this Honourable Court be
pleased to issue temporary orders of injunction restraining the Defendants, their agents,
servants and/or employees or whomsoever acting on their behalf or instructions from
selling, advertising for sale or in any other matter whatsoever from dealing with
L.R. NO. MATATA/RONGWE/1043.
3. THAT this Honourable Court be pleased to issue orders of injunction
restraining the Defendants, their agents, servants and/or employers or whomsoever
acting on their behalf or instruction from selling, re-advertising for sale or in any other
matter whatsoever from dealing with L.R. NO. MATATA/RONGWE/1043 pending the
hearing and determination of this suit.
4. That costs of this application be provided for.
WHICH SAID APPLICATION is based on the following grounds.
1. That the defendant has engaged an auctioneer to advertise and sell L.R. L.R NO.
MATATA/RONGWE/1043 by public auction.
2. That the 1st defendant and the 3rd defendants are acting in bad faith in seeking to
dispose of L.R NO. MATATA/RONGWE/1043 without any vlid redemption notice
being served..

3. That the plaintiff stands to suffer loss and irreparable damage if the property is sold
as intended by the Defendants and the land parcel is his only source of livelihood and
upon which he has established homestead and other developments.
4. That this Honourable Court ought to come to the rescue of the
plaintiff/applicant and issue injunctive orders as prayed.
5. That the prayers sought for by the plaintiff/applicant are meant to preserve the status
quo and will not in any way prejudice the defendant's case, if any
WHICH SAID GROUNDS are further supported by the annexed affidavit of JESIKA WAKA
SINGH, the 2nd Plaintiff/Applicant herein and on other or further grounds to be adduced at the
hearing thereof.
DATED at Rongwe this..day of ..2015.
LELO BANALOLA& COMPANY
ADVOCATES FOR THE PLAINTIFF/APPLICANT
DRAWN & FILED BY
LELO BANALOLA & COMPANY
ADVOCATES
FAIRLING BUILDING, 1ST FLOOR,
MASAKU-KITUI HIGHWAY,
P.O. BOX 111-00100,
NAIROBI .(lelobanalolaadvocates@yahoo.com); 041-2319753.
TO BE SERVED UPON.
JEPTUM CHIRCHIR & CO.
ADVOCATES
KENYA HOUSE
MONROVIA ST
P.O.BOX 73011-00200
NAIROBI
NOTICE: If any party served does not appear at the time and place above
mentioned such Orders will be made and proceedings taken as the
Court may think just and expedient
REPUBLIC OF KENYA
IN THE MATATA ENVIRONMENT AND LAND COURT
AT RONGWE

CIVIL SUIT NO. 103 OF 2015

1. CAIN WAKA SINGH
2. JESIKA WAKA SINGH.PLAINTIFFS/APPLICANT
VERSUS
KULA LINK BANK LTD.DEFENDANT/RESPONDENT
SUPPORTING AFFIDAVIT
I, JESIKA WAKA SINGH, of Post Office Box Number, 467, Rongwe, a resident of Matata within
Rongwe County in the Republic of Kenya do hereby make oath and state as follows:1. THAT I am the 2ndPlaintiff/applicant herein and hence competent to swear this affidavit
herein.
2. THAT the 1st Plaintiff herein is the registered owner of L.R. NO.
MATATA/RONGWE/1043. (Attached is a copy of title deed marked as JWS-1 to L.R.
NO. MATATA/RONGWE/1043 the original of which is held by the bank)
3. THAT I am the 1st plaintiffs legally married wife and thus have beneficial ownership
and/or overriding interests on the property. (Attached is a marriage certificate marked
as JWS-2)
4. THAT the 1st Plaintiff entered into loan agreement with the defendant surrendering title
deed to his land as security. (Attached is a copy of the loan agreement dated 5 th
September 2012 marked as JWS-3)
5. THAT the loan arrangement is null and void ab initio for want of spousal consent since
it is for matrimonial property to which her consent was not sought.
6. THAT I file this suit
seeking for temporary
injunction restraining the
Defendant/Respondent through himself and/or his agents and/or his servants and/or his
employee or whoever acting on the Defendants behalf from pending the hearing of this
application inter-parties restraining the defendant, their agents, servants and/or
employees or whomsoever acting on their behalf or instructions from selling, readvertising for sale or in any other matter whatsoever from dealing with L.R. NO.
MATATA/RONGWE/1043.
7. THAT the defendant is acting in bad faith in seeking to dispose of L.R NO.
MATATA/RONGWE/1043 without giving any valid redemption notice..
8. THAT the Defendants/Respondents actions herein is unlawful and/or illegal and/or
unprocedural and/or without any color of right, whatsoever as it has not granted the
plaintiffs adequate time to redeem themselves.
9. THAT no prejudice shall be suffered to the Defendant/Respondent if the sought for
Orders herein are granted BUT I and my families will suffer irreparable loss and
damage if the Orders sought for herein are not granted.

10. THAT I make this affidavit in support of my application herein.

11. THAT all what is deponed to herein is true to the best of my knowledge, information and
belief.
SWORN by the said
}
JESIKA WAKA SINGH
}.
At Nairobi this..day of.2015 } DEPONENT
}
BEFORE ME
}
}
COMMISSIONER FOR OATHS
DRAWN & FILED BY
M/s LELO BANALOLA& COMPANY
ADVOCATES
FAIRLING BUILDING, 1ST FLOOR,
MASAKU-KITUI HIGHWAY
P.O. BOX 111-00100,
NAIROBI.(lelobanalolaadvocates@yahoo.com); 041-2319753.

TO BE SERVED UPON.
JEPTUM CHIRCHIR & CO.
ADVOCATES
KENYA HOUSE
MONROVIA ST
P.O.BOX 73011-00200
NAIROBI

REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
CIVIL SUIT NO OF 2015
1. CAIN WAKA SINGH
2. JESIKA WAKA SINGH.PLAINTIFFS/APPLICANTS

VERSUS
KULA LINK BANK
LTD.DEFENDANT/RESPONDENT
THE PLAINTIFFS/APPLICANTS WRITTEN SUBMISSION IN SUPPORT OF THE
NOTICE OF MOTION APPLICATION DATED 1ST MAY, 2015
May it please your Honour!
On behalf of the Plaintiffs/Applicants herein, we wish to submit that the Plaintiffs/Applicants
Injunctive Notice of Motion Application dated 1st May, 2015 is meritous and thus should be
allowed with costs.
(a) Background
Your Honour, the Plaintiffs/Applicants commenced this suit and filed the present application for
injunctive Orders to prevent the Defendant/Respondent from advertising and/or selling of the
plaintiffs/applicants property, being L.R. NO. MATATA/RONGWE/1043, following imminent
threats of sale of the said property by the defendants.
(b) Documentary evidence
Your Honour, the plaintiffs/applicants attached a bundle of documents to her supporting affidavit
to prove ownership of the suit premises. To this, we refer your Honour to the ownership
documents appearing on pages _to _of the 2nd plaintiffs/Applicants supporting affidavit sworn
and filed on 1st May, 2015.

In his reply, your Honour, the Defendant/Respondent filed a Replying Affidavit sworn and filed
on 2nd May, 2015, in which he alleges that he entered into a loan agreement with the 1 st
plaintiff/applicant creating a charge on his land. That their was no indication that the land was
matrimonial property and that even if it was, spousal consent was immaterial. Further the
defendant filed a bundle of documents consisting of a charge, loan agreement, notice to sale
among others.
Your Honour, from the bundle of documents filed, the defendant seems to allege that he has a
right to sale the plaintiffs property since there had been no violation of the terms of the loan
agreement and that the law was followed.
(c) Analysis

Your Honour, where one charges matrimonial property without execution of the chargors spouse
or any indication that it has been assented to. The suit land herein is matrimonial property yet
no spousal consent was obtained. Section 79 (3) of the Land Act, Act No. 6 of 2012, provides as
follows:S. 79 (3) A charge of a matrimonial home, shall be valid only if any document or form used in
applying for such a charge, or used to grant the charge, is executed by the chargor and any
spouse of the chargor living in that matrimonial home, or there is evidence from the document
that it has been assented to by all such persons.
Your Honour, the statutory notice purportedly served upon the plaintiffs/applicants contains
interest rates that are not contained in the agreement. Section 80(3) of the Land Act is a
mandatory provision of the law. The details under this section are not contained in the charge
before the Court. Therefore, the Charge is defective, null and void. In the circumstances, the said
charge does not afford the Defendant the powers reserved for chargees in the Land Act and the
Chargee cannot exercise any power of sale on that charge. We rely on the case of MMella vs.
Savings and Loan (K) Limited [2007] 2 EA 316 (CAK) where the Court of Appeal stated:
.could one say that because the charge was not valid, the appellant was released from his
duties under the charge? The answer is, in our view, yes, during the period when the charge
remained invalid. But we make haste to add that the appellant was only released from his
duties under the charge and not under the contract.
Additionally, the notice was not served upon the plaintiffs. The paintiffs categorically denie ever
being served with the notice. It is upon the defendant to prove that they served and that there was
proper service, which they havent. See Nyangilo Ochieng & Another v Kenya Commercial
Bank, Court of Appeal at Kisumu, Civil Appeal No. 148 of 1995 (1996) eKLR where the Court
of Appeal stated as follows :It is for the chargee to make sure that there is compliance with the requirements of s.74 (1)
of the Registered Land Act. That burden is not in any manner on the chargor. Once the
chargor alleges non-receipt of the statutory notice it is for the chargee to prove that such
notice was in fact sent.
In any case your Honour, the notice is fatally defective since different dates are indicated in the
statutory notice and in the advertisement. (Attached is the notice marked JWS-4 and the
advertisement marked JWS-5)
Your Honour, due to the foregoing the chargees equitable right of redemption had not arisen for
want of a proper statutory notice, and further that the sale is premature. If the sale of the suit
property is carried through in the absence of a proper Notice to sell it will amount to a clog on

the Chargors Equity of Redemption. See Albert Mario Cordeiro & another v Vishram Shamji
[2015] eKLR, Civil Suit 329 of 2014.
d) Conclusion
Your Honour, we therefore pray that the defendant be barred from proceeding to offer for sale
the suit land based on the purported statutory notice or the purported Notification of Sale of the
suit land. Further your Honour, we seek that the plaintiffs/applicants are not saddled with the
auctioneers charges for the sale intended.
We also seek that
defendant/respondent.

costs

be

provided

for

the

plaintiffs/applicants

against

the

Your Honour, be guided by the authorities adduced and find it fit to grant the
plaintiffs/applicants prayers as prayed for.
Thank you.
Thats all, your Honour!

DATED at Nairobi this..day of ..2015.

LELO BANALOLA& COMPANY
ADVOCATES FOR THE PLAINTIFF/APPLICANT
DRAWN & FILED BY
LELO BANALOLA & COMPANY
ADVOCATES
FAIRLING BUILDING, 1ST FLOOR,
MASAKU-KITUI HIGHWAY,
P.O. BOX 111-00100,
NAIROBI .(lelobanalolaadvocates@yahoo.com); 041-2319753.
TO BE SERVED UPON.
JEPTUM CHIRCHIR & CO.
ADVOCATES
KENYA HOUSE
MONROVIA ST
P.O.BOX 73011-00200
NAIROBI