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Court of AppealDismissedNot stated in the judgment

Gakuru v National Industrial Credit Bank Limited (Civil Appeal 84 of 2001) [2002] KECA 274 (KLR)

Court of Appeal of Kenya
12 July 2002
931 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a bank to pursue selling a borrower's land because he admitted the debt but made no effort to repay it.

What this practically means

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Executive summary

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This was an interlocutory appeal to the Court of Appeal at Nairobi against a ruling of the High Court (Khamoni, J) delivered on 5th February 2001 dismissing the appellant's application for an interim injunction restraining the respondent bank from selling or dealing with two sub-divided parcels of land, L.R. Nos. 3734/1141 and 3734/1143, pending trial. The appellant had charged his original property, L.R. 3734/750, to secure a Shs. 7 million loan, later repaid; the property was then sub-divided into four plots and a second loan of Shs. 4.6 million was advanced without a fresh charge being executed. The appellant argued the original parcel was extinguished on sub-division, the second loan was unsecured, and no statutory power of sale could arise. The bank relied on Recital B of the charge, which made it a continuing security for all sums advanced from time to time. The Court of Appeal, comprising Gicheru, Tunoi and Owuor, JJ.A, in a single unanimous judgment, declined to express concluded views on matters for trial but observed that the mother title was charged, that only partial discharges had released two parcels, and that the appellant had made no attempt to repay the second loan. Holding the appellant undeserving of equitable relief and unable to show that the Judge's discretion had been exercised injudiciously, the court dismissed the appeal with costs.

Questions the Court framed

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

  1. 1.Whether the sub-divided parcels L.R. Nos. 3734/1141 and 3734/1143 remained subject to the Charge over the original title L.R. 3734/750 as continuing security
  2. 2.Whether the respondent bank had any statutory power of sale over the suit parcels in respect of the second loan of Shs. 4.6 million for which no fresh charge was executed
  3. 3.Whether the learned Judge erred in refusing an interim injunction and whether the appellate court should interfere with that discretionary decision

Key legal issues

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01

Whether the charge over the mother title operated as continuing security over the sub-divided parcels

Holding

The court declined to make concluded findings since the suit was untried, but noted it was manifest and undenied that the mother title was charged and that partial discharges, not a full discharge, had released only two of the four sub-divided parcels.

Reasoning

The charge contained Recital B clauses stipulating that the security was continuing for all sums advanced from time to time. Partial discharges enabled parcels 1140 and 1142 to pass to third parties, but no similar discharge covered the two suit parcels. The court refrained from expressing concluded views on issues for trial, but observed the appellant had not repaid the second loan of Shs. 4.6 million.

p. 2
02

Whether the High Court's refusal of an interim injunction should be disturbed on appeal

Holding

The refusal was a proper exercise of judicial discretion and the appeal against it failed.

Reasoning

Interim injunctions are equitable remedies; the appellant's open conduct in admitting the second loan and making no attempt to liquidate it without reasonable cause rendered him undeserving of equitable relief. The appellant did not demonstrate how the learned Judge could be faulted in his ruling, so the appellate court would not interfere with the discretionary decision.

p. 2

Legal principles established

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  • An appellate court will not interfere with the grant or refusal of an interim injunction, an exercise of judicial discretion, unless it is shown that the discretion was not exercised judicially.
  • A party whose own conduct shows he is undeserving of equitable relief, such as a borrower who makes no attempt to repay an admitted loan, will be denied an injunction.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant to pay the costs of the appeal

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal against an interlocutory ruling of the High Court (statutory appellate jurisdiction; no specific provision cited in the judgment)

Relief refused

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Interim injunction restraining the respondent bank from selling or dealing with L.R. Nos. 3734/1141 and 3734/1143 pending trial

The appellant, having taken the second loan and made no attempt to repay it, was undeserving of equitable relief; the Judge's discretion was not shown to have been exercised injudiciously

p. 2

Costs

The appeal was dismissed with costs to the respondent.

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.

It is trite that the granting of an interim injunction is an exercise of judicial discretion and an appellate court will not interfere unless it be shown that that discretion has not been exercised judicially.
p. 2Appellate interference with discretionary interlocutory decisions
the injunction that was sought by the appellant, being an equitable remedy, should not issue in his favour as he demonstrated openly by his conduct that he was undeserving of the equitable relief.
p. 2Equitable remedy denied to a party with unclean hands / undeserving conduct
In the result this appeal fails and is accordingly dismissed with costs.
p. 2Final orders - dismissal of the appeal

Issues in the judgment

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minor

The copy of the judgment contains garbled/corrupted text in places (e.g. the description of the property location and counsel's name are illegible), and the appeal number and neutral citation are not stated.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gakuru v National Industrial Credit Bank Limited (Civil Appeal 84 of 2001) [2002] KECA 274 (KLR)", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/274/eng@2002-07-12

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