Kenya Commercial Bank Limited v Jason Jevin Matere & 2 others [2001] KECA 197 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an injunction protecting family land from bank sale because the judge relied on arguments nobody made.
What this practically means
#Executive summary
#Key legal issues
#Whether a temporary injunction can be sustained where it is granted on the basis of matters not pleaded by the parties.
No. The Court of Appeal held that the learned judge went outside the case pleaded by the parties by introducing issues under sections 65 and 71 of the Registered Land Act, and that a temporary injunction granted upon such extraneous matters cannot be sustained. The ruling granting the injunction was therefore reversed.
The dispute before the High Court concerned a loan of KShs.750,000 advanced in January 1991, alleged unagreed variations of interest reaching 47.5% per annum, and the bank's advertised sale of the charged property under its statutory power of sale. The learned judge, however, introduced issues arising under sections 65 and 71 of the Registered Land Act, which neither party had pleaded. Because the injunction rested on those extraneous matters rather than on the case as pleaded, the appellate court held it could not be sustained and reversed the ruling, dismissing the respondents' application with costs.
Whether the High Court could order payment of the outstanding loan by instalments in the absence of an application for that relief.
No. The instalment payment order was made without any application before the learned judge and could not stand; in any event, the respondents' own case was that, other than interest to be ascertained, no sum remained outstanding.
The Court of Appeal observed that no application for payment by instalments had been made before the learned judge, so the order lacked any procedural foundation. Further, the respondents had come to court on the basis that, apart from interest to be ascertained, there was no sum still outstanding, which was inconsistent with an order directing payment of an outstanding loan balance by instalments. That order therefore fell together with the injunction when the appeal was allowed and the ruling reversed.
Legal principles established
#- A temporary injunction granted on the basis of matters outside the pleadings, which the court introduces on its own motion, cannot be sustained.
- A court cannot order payment of an outstanding loan by instalments where no application for that relief has been made before it.
Court orders
#- 1.Appeal allowed with costs.
- 2.The ruling and order of the High Court (Mbito, J.) dated 8 November reversed.
- 3.Substitution in place of the reversed ruling of an order dismissing with costs the respondents' application dated June 11, 1998.
- On appeal from
- High Court of Kenya at Bungoma
- H.C.C.C. No. 37 of 1998
- Jurisdiction invoked
- Not expressly stated in the judgment; the appeal lies from a ruling of the High Court at Bungoma to the Court of Appeal, but no constitutional or statutory provision conferring jurisdiction is cited in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank Limited v Jason Jevin Matere & 2 others [2001] KECA 197 (KLR)", Case Analysis (2001). Civil Appeal No. 139 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/197/eng@2001-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.