Mary Fischer wants the court to bar the lender from harassing or demanding rent from her, pending the determination of the case she has lodged against the Bank and the property seller Kencom Sacco Society ltd.
She further wants the court to stop the Bank from advertising for sale, selling, evicting , proclaiming or auctioning the house in Runda built of L.R .12825/195.
Fischer told the court that the lender wrote to her on November 25, 2020, demanding payment of the property and threatened to commence the recovery process including advertising the house for sale.
She reveals that she purchased the property on November 26, 2013, from Kencom Sacco Society ltd for Sh28 million and paid the entire amount as per terms of agreement.
According to Fischer after completion of the house, she and the Sacco signed a lease which was forwarded to the sacco together with requisite stamp duty for purpose of registration.
However, she said the property has not been registered because the Bank has allegedly refused, ignored or neglected to issue a partial discharge for the house.
Fischer told the court that the house was sold free of any encumbrances and she was not aware of any loan agreement entered between the Bank and the Sacco and she was not part of the agreement.
“I will suffer immense prejudice in the event National Bank proceeds to me and there after sell my property while this issue is pending before court,” Fischer told the court.
National Bank is opposing Fischer application for tempory order arguing that all proceeds of sale of the said property were supposed to be deposited at the Bank and the sacco was supposed to open an escrow account with the National Bank where all proceeds would be deposited and the Bank be supplied with the details of the sale and deposit received on monthly basis.
According to the National Bank, any amounts from the escrow account opened by Kencom Sacco could only be released under the approval of the National Bank during the course of the Project.
The Bank further added that the said escrow account is the very same account into which all payments towards the purchase of the Units in the Project by other Purchasers of Units erected on the Suit Property were to be made (see copies of the various Agreements for sale of Units in the Project entered into by the sacco with other Purchasers.
“In so far as the Fischer’s Sale Agreement with Kencom Sacco dated 26th November 2013 is concerned, Clause 6 (c) in particular of this Agreement reflects a different and unknown account which is not the escrow account as agreed in the various letters of offer and security documents between the sacco aforesaid,” says the Bank.
National Bank adds that the said account which has now been indicated is the sacco’s account held with Kenya Commercial Bank Limited (“KCB”) and the existence of this account was neither disclosed to the Bank nor was the Bank aware of or privy to any transactions