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Court of AppealDismissedCivil Appeal 177 of 1998

TRUST BANK LIMITED v GEORGE ONGAYA OKOTH (Civil Appeal 177 of 1998) [2000] KECA 13 (KLR)

Court of Appeal of Kenya
14 January 2000
2,285 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a bank's property sale notice giving a borrower only 14 days instead of three months was invalid, protecting the borrower's home.

What this practically means

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Executive summary

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This was an interlocutory appeal against a ruling of Hayanga, J. delivered on 4 May 1998 in H.C.C.C. No. 1135 of 1997, by which the High Court granted George Ongaya Okoth an interlocutory injunction restraining Trust Bank Limited from dealing with two Karen properties (L.R. No. 1160/471 and L.R. No. 1160/472) charged to the bank. The bank proposed to exercise its statutory power of sale on the strength of a demand letter of 26 August 1996 which gave the respondent only fourteen days to pay Kshs. 75,408,911.75. The sole determinative issue was whether that letter was a valid statutory notice under section 69A(1)(a) of the Transfer of Property Act. The Court of Appeal, in a judgment delivered by Bosire, J.A. with which Owuor, J.A. and Gicheru, J.A. agreed, held that the three-month period runs only from the date of service of the notice on the mortgagor, that the notice must require payment and warn of the consequences of default, and that a notice allowing a lesser period is invalid even if the mortgagee does not sell until after three months have expired from the date of the notice. The court expressly declined to follow Russel Company Limited v. Commercial Bank of Africa to the extent it held otherwise, and applied the old English decision of Metters v. Brown. Issues requiring oral evidence, including the respondent's claim that nothing was truly owed, were left to the trial court. The appeal was dismissed with costs to the respondent, taxed if not agreed, thereby affirming the interlocutory injunction.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the letter of 26th August 1996 constituted a valid statutory notice under section 69A(1)(a) of the Transfer of Property Act
  2. 2.Whether a statutory notice stating a period shorter than three months is valid where the mortgagee does not attempt to sell until after three months from the date of the notice

Key legal issues

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01

Validity of a statutory notice under section 69A(1)(a) that allows less than three months to pay

Holding

The notice was invalid because it gave the respondent only 14 days to pay, whereas the section requires that default be made in payment for three months after service of the notice; the period runs from service, not from the date of the notice.

Reasoning

The court held that section 69A(1)(a) fixes the commencement date of the notice as the date of service on the mortgagor, and the mortgagee cannot pick any other date. The notice must require payment of the mortgage money and warn of the consequences of default. A notice allowing only 14 days denies the mortgagor the statutory three months; any delay by the mortgagee in selling thereafter is merely ex gratia and cannot cure the invalid notice. Russel Company Limited was expressly disapproved to the extent it held otherwise.

p. 3
02

Status of Russel Company Limited v. Commercial Bank of Africa

Holding

The decision in Russel's case did not accord with section 69A(1)(a) and was therefore invalid to the extent it treated a notice dated from its own drawing date as sufficient.

Reasoning

In Russel's case the commencement date was taken as the date of the notice rather than the date of service, and the mortgagor was not given the requisite three months from service. The court, while respectful, held that the notice in that case did not accord with the section and was invalid, so the case did not assist the appellant.

p. 4
03

Limits of an interlocutory appeal

Holding

The court declined to determine issues requiring evidential proof, such as the respondent's contention that nothing was owed or that the claim comprised illegal charges, leaving those to the trial judge.

Reasoning

Because the appeal was interlocutory and the suit remained pending, the court confined itself to the pure question of statutory construction on the validity of the notice and eschewed any attempt to deal with issues requiring oral testimony and cross-examination.

p. 1

Legal principles established

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  • Under section 69A(1)(a) of the Transfer of Property Act, the three-month period of a statutory notice runs only from the date of service of the notice on the mortgagor, and a notice allowing a lesser period is invalid even if the mortgagee delays selling beyond three months.
  • A statutory notice must specify what the mortgagor must do (pay the mortgage money) and warn of the consequences of default; giving a lesser period than the statutory three months denies the mortgagor a right the law expressly gives him.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondent, to be taxed if not agreed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

BO
majority

Wrote the judgment

OW
majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1135 of 1997
Jurisdiction invoked
First appellate jurisdiction over an interlocutory ruling of the High Court (appeal from the ruling of Hayanga, J. in H.C.C.C. No. 1135 of 1997)

Relief refused

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The appellant's challenge to the interlocutory injunction restraining it from dealing with the respondent's properties

The statutory notice relied on was invalid as it did not allow three months from the date of service

p. 5

Costs

Costs of the appeal to the respondent, to be taxed if not agreed

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Section 69A (l) (a) of the Transfer of Property Act fixes a commencement date of the notice. A Mortgagee has no right to pick on any other date as the date of commencement. The period runs from the date of service of the notice on the Mortgagor.
p. 2Commencement of the statutory notice period
The Legislature having stipulated that period and the date from which it would run, it is my view that giving a lesser period denies a Mortgagor a right to which the law expressly gives him.
Invalidity of a notice allowing less than three months
The upshot of the foregoing is that this appeal lacks merits and I would dismiss it with costs to the respondent to be taxed if not agreed.
p. 5Final orders - dismissal and costs

Issues in the judgment

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material

The judgment of Owuor, J.A. refers to a draft judgment by Gicheru, J.A., but no separate judgment by Gicheru, J.A. appears in the text supplied; the coram is therefore incomplete on the face of the document.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "TRUST BANK LIMITED v GEORGE ONGAYA OKOTH (Civil Appeal 177 of 1998) [2000] KECA 13 (KLR)", Case Analysis (2000). Civil Appeal 177 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/13/eng@2000-01-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.