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WHEN THE COURT WOULD BE INCLINED TO GRANT AN INJUNCTION

The courts will be inclined to grant a stay for a
Where the amount due and payable is disputed
Where the mortgagor has commenced an action to pursue a right of redemption;
Where the mortgagor has challenged the procedural requirements as adopted by the mortgagee in conducting the sale.

The effect of a stay is to restrain or put in abeyance any such process and the being injunctive as it were, such an order will only be granted where the applicant satisfies the conditions present.  A stay is a matter for the discretion of the courts and the remedy may be declined or granted depending on the strength of the applicant’s case.  There are instances where the courts would be inclined to injunction the mortgage role or the chargor. Where there is a threat to get rid of the security, when the mortgagor or chargor have relieved the chargee or mortgagee of the security offered for the financial accommodation that has been given.  In such cases they will be deprived of a fundamental ingredient of the mortgage or charge transaction on the basis of which they will or they are entitled to realise their security and so the chargee can successfully stop the chargor from dealing with the property charged in such a manner as would deprive him of the security.  Isaac Kamau Ndirangu V. Commercial Bank of Africa Ltd.  That was the holding.

It should be clear that through these transactions, the mortgagor or chargor are at a disadvantage and since in any arrangement that involves unequal parties there is bound to be excesses, or the overall transaction would tend to favour more the advantaged party that has been recognised as the nature of mortgage and charge transactions.  In Verno V Bethel the court stated that necessitors men are not truly speaking free men but to answer a present exigency will submit to any terms that the draftee will impose upon them. This then explains the underlying attitude that the courts have had towards cushioning or protection to the mortgagee or chargee in all these forms of transactions.  It is recognise that the parties are not of equal bargaining power.

 
 
 

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