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Court of AppealPartially AllowedCivil Appeal No. 139 of 2000· [2001] KECA 197 (KLR)

Kenya Commercial Bank Limited v Jason Jevin Matere & 2 others [2001] KECA 197 (KLR)

Court of Appeal
23 November 2001
623 words in judgment
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The bottom line

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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

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Executive summary

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This is a Court of Appeal judgment allowing an appeal by Kenya Commercial Bank Limited against a ruling of the High Court at Bungoma (Mbito, J.) delivered on 8 November 1999 in H.C.C.C. No. 37 of 1998, which granted the respondents a temporary injunction restraining the bank, its servants or agents from selling or disposing of L.R. No. Bungoma/Tongaren/206 pending hearing and determination of the suit. The dispute concerned a loan of KShs.750,000 advanced on 13 January 1991 repayable with interest at between 16% and 19% per annum. The respondents alleged that the bank varied the agreed rate without notice, that rates reached 47.5% per annum by 1996, and that they had repaid the principal, owing only interest of about KShs.678,000. The bank denied this, asserting default and an outstanding balance of KShs.1,645,476.55 as at 30 May 1998, and contending that the respondents had shown no intention to redeem the charge. Allowing the appeal, the Court of Appeal held that the learned judge had gone 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 could not be sustained. The court further held that the judge ought not to have ordered payment of the outstanding loan by instalments, no such application having been made before him, noting that the respondents' own case was that, apart from interest to be ascertained, no sum remained outstanding. The court allowed the appeal with costs, reversed the ruling, and substituted an order dismissing the respondents' application dated 11 June 1998 with costs. The decision binds lower courts: injunctions must rest on the pleadings, and relief such as payment by instalments cannot be granted without an application.

Key legal issues

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01

Whether a temporary injunction can be sustained where it is granted on the basis of matters not pleaded by the parties.

Holding

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.

Reasoning

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.

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02

Whether the High Court could order payment of the outstanding loan by instalments in the absence of an application for that relief.

Holding

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.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.Appeal allowed with costs.
  2. 2.The ruling and order of the High Court (Mbito, J.) dated 8 November reversed.
  3. 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

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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, "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.