TRUST BANK LIMITED v GEORGE ONGAYA OKOTH [2000] KECA 32 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a bank's 14-day property sale notice was invalid because the law requires a full three months from the date the borrower receives it.
What this practically means
#Executive summary
#Key legal issues
#Validity of a statutory notice under section 69A(1)(a) of the Transfer of Property Act
The notice was invalid because it gave the respondent only 14 days to pay instead of the statutory three months running from service.
Section 69A(1)(a) requires that a notice requiring payment of the mortgage money be served and that default continue for three months after service. The commencement date is fixed by statute as the date of service; the mortgagee cannot choose another date. The notice must require payment and warn of the consequences of default. A notice allowing only 14 days denies the mortgagor the statutory three-month period, and delay in selling after the notice cannot cure the defect.
Correctness of Russel Company Limited v Commercial Bank of Africa
The court declined to follow Russel, holding that its approach did not accord with section 69A(1)(a).
In Russel the commencement date was taken as the date of the notice rather than the date of service, and the mortgagor was not given the stipulated three months from service. To that extent the decision did not accord with the section and was therefore invalid, so it did not assist the appellant.
Limits of an interlocutory appeal
The court declined to determine issues requiring oral evidence, leaving them to the trial court.
The respondent's contention that he owed nothing, and that the claim comprised illegal charges, commissions and fees, required oral testimony and cross-examination. Being an interlocutory appeal, the court confined itself to the validity of the statutory notice and eschewed evidential questions.
Legal principles established
#- The three-month period under section 69A(1)(a) of the Transfer of Property Act runs from the date of service of the notice on the mortgagor, not from the date of the notice, and a notice allowing a lesser period is invalid.
- A statutory notice must require payment of the mortgage money and warn the mortgagor of the consequences of default; giving a lesser period than the statutory three months denies the mortgagor a statutory right.
Court orders
#- 1.Appeal dismissed
- 2.Costs to the respondent, to be taxed if not agreed
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1135 of 1997
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an interlocutory ruling of the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TRUST BANK LIMITED v GEORGE ONGAYA OKOTH [2000] KECA 32 (KLR)", Case Analysis (2000). Civil Appeal 177 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/32/eng@2000-01-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.