Renowned cardiologist and co-founder of Karen Hospital Dr Betty Muthoni Gikonyo has obtained a court order blocking the auction of her property in Ngong after a fraudster faked the land title to guarantee a loan of Sh15 million.
Dr Gikonyo discovered the fraud when Premier Bank was about the sell the property in a public auction to recover the loan.
Justice Loise Komingoi ruled that Dr Gikonyo had established a case to show that she would suffer irreparably if the property was auctioned as planned.
The Environment and Land court judge said it was curious that Mr Stanley Ngigi Wanyoike, who claims to own the contested land, failed to participate in the proceedings despite being said to be the registered owner of the property.
The judge wondered why Mr Wanyoike did not oppose the planned auction by Keysian Auctioneers yet he was only a guarantor.
"Land, being a unique asset, this court finds that if the property is sold, and her ownership is later established, recovery may not be feasible, and damages may not suffice," said Justice Komingoi.
She stated that where fraud is alleged, courts are inclined to preserve the status quo until the dispute is resolved.
"I am satisfied that Dr Gikonyo has demonstrated an arguable case that meets the threshold for grant of an interim injunction restraining Premier Bank from exercising its statutory power of sale over the property pending the hearing and determination of the suit," said the judge.
Dr Gikonyo, the chairperson of Karen Hospital and wife to fellow cardiologist Dr Dan Gikonyo, informed the court that she was the registered owner of the land known as title number Ngong/Ngong/56387 in Kajiado County.
She told the court that discovered that Mr Wanyoike had forged and caused the title to the property to be registered in his name and using the fake title, charged it to Premier Bank for a loan of Sh15 million guaranteed to a Mr Abdinoor Malim Issack who defaulted on repayment, when the lender was about to sell it.
Premier Bank then instructed Accurate Valuers Limited to value the property for purposes of exercising its statutory power of sale.
The bank through its legal manager Claris Ogombo opposed the case arguing that it offered the loan advances to Mr Abdinoor in January 2022.
Mr Ogombo said on January 27, 2022, consent for the charge was granted by the Kajiado North Land Control Board, and on the following day, an official search of the property was undertaken and which confirmed that Mr Wanyoike was the registered owner.
The bank official stated that the charge was registered on February 4, 2022 and a search carried out on the same day, confirmed as much.
Both the borrower, Mr Abdinoor) and the guarantor Mr Wanyoike yet again failed to comply and the lender once again issued them with the 40-day notice to dispose of the land.
Justice Komingoi noted that the claim of fraud raised a significant issue, which required a thorough examination of the evidence at the trial.
“While the court cannot conclusively determine the validity of the title at this stage, the claims by Dr Gikonyo present a prima facie case requiring further hearing,” said the judge.
Again, the judge argued that the balance of convenience must weigh the rights of Dr Gikonyo against the potential prejudice to the bank.
And whereas the lender argued that granting the injunction would cause it loss -having lawfully created the charge and followed due process in exercising its statutory power of sale- claims of fraud have been raised.
She added that it was necessary to issue the order to preserve the status quo, pending the resolution of the case.
