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Court of AppealDismissedCivil Appeal 78 of 2004· [2005] KECA 102 (KLR)

Delphis Bank Limited v Praful Natwarlal Shavdia & 2 others [2005] KECA 102 (KLR)

Court of Appeal of Kenya
7 October 2005
1,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A bank cannot auction property over a notice it knew the owner would never receive — Kenya's Court of Appeal called that grave injustice.

What this practically means

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Executive summary

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This is an interlocutory appeal by The Delphis Bank Limited against a ruling of the High Court of Kenya at Mombasa (Sergon, J) granting the respondents a temporary injunction restraining the bank from selling by public auction Mombasa/Block XXI/506, Flat No.3, Ganjoni, the suit property. The respondents had obtained an overdraft facility from the bank, offered the property as security and executed personal guarantees. On default the bank moved to exercise its statutory power of sale, and the respondents sued, contending that they had not been served with the mandatory statutory notice of sale under section 74 of the Registered Land Act and Rule 49 of the Auctioneers Rules, 1997, among other complaints. The notice intended for the 2nd respondent, who was living overseas, was sent by registered post to a Mombasa postal box address and was returned unclaimed; the 1st respondent, his attorney, refused to accept service, and the bank admitted it attempted no other legally recognised mode of service. On appeal the bank argued that proof of posting amounted to deemed service under section 153(c) of the Registered Land Act. In a single judgment of the court, the Court of Appeal rejected that submission: the bank knew the 2nd respondent did not reside in Kenya and would not receive the notice, and dispatching it in those circumstances was unreasonable. The deeming provision, the court held, was not meant to be used unreasonably or to perpetrate injustice, and a contrary construction would allow property to be sold without the owner's knowledge, constituting grave injustice. The High Court's findings were affirmed and the appeal was dismissed with costs. No case law was cited in the judgment.

Key legal issues

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01

Whether the 2nd respondent was 'deemed to have been served' with the statutory notice of sale under section 153(c) of the Registered Land Act when the notice sent by registered post was returned unclaimed.

Holding

No. Although the appellant sent the notice by registered post to the 2nd respondent's last known postal address in Kenya as section 153(c) required, it knew he did not reside in Kenya and would not receive it. Dispatching the notice in those circumstances was unreasonable, so deemed service did not arise.

Reasoning

Section 153(c) of the Registered Land Act deems a notice served if sent by registered post to a person's last known postal address in Kenya. The appellant chose that mode and posted the notice to P.O. Box No. 81930, Mombasa, the address given in the charge and guarantee. But it was common knowledge that the 2nd respondent lived overseas; his attorney, the 1st respondent, refused to accept service; and the appellant admitted it attempted no other legally recognised mode. The court held the deeming provision cannot be used unreasonably to perpetrate injustice, since the property would otherwise be sold without the owner's knowledge.

p. 2
02

Whether proof of posting is proof of service, as the appellant argued, and whether the learned Judge erred in finding a prima facie case and granting the injunction.

Holding

The appellant's submission was rejected. The judge's finding that the 2nd respondent was not served was correct and could not be faulted; the respondents had a prima facie case on the ground of lack of service and the injunction was properly granted. The appeal therefore failed and was dismissed with costs.

Reasoning

The appeal attacked only the learned Judge's finding on service of the statutory notice. The court read section 153 as a whole, accepted that the appellant had chosen subsection (c), but held that formal posting could not amount to deemed service where the sender knew the addressee would not receive the notice. A contrary construction would permit the sale of property without the owner's knowledge — a grave injustice. With the service finding upheld, the respondents' prima facie case stood and the sole ground of appeal failing, the appeal was dismissed with costs.

p. 3

Legal principles established

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  • A sender of a statutory notice who dispatches it by registered post well knowing that the addressee will not receive it acts unreasonably, and the addressee cannot in consequence be deemed to have been served under the Registered Land Act.
  • Statutory deeming-of-service provisions must not be used unreasonably or to perpetrate injustice; a construction that would permit a person's property to be sold without his knowledge would constitute grave injustice.
  • The statutory notice of sale under section 74 of the Registered Land Act and Rule 49 of the Auctioneers Rules, 1997 is mandatory before the statutory power of sale is exercised, and non-service of it founds a prima facie case.

Court orders

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  1. 1.The appeal fails and is dismissed.
  2. 2.The appellant to pay the costs of the appeal, the appeal having been 'dismissed with costs'.

Authorities

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Legislation

  • Registered Land ActSection 74
  • Registered Land ActSection 153
  • Registered Land ActSection 153(c)
  • Registered Land ActPower of attorney provisions (referred to as 'a Power of Attorney under the Act'; section number not stated)
  • Auctioneers Rules, 1997Rule 49
On appeal from
High Court of Kenya at Mombasa
Jurisdiction invoked
No appellate jurisdiction provision is expressly cited in the judgment; the matter is described only as 'an interlocutory appeal by the defendant in the suit' brought to the Court of Appeal against the High Court's order of 6th November 2003 granting a temporary injunction.

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, "Delphis Bank Limited v Praful Natwarlal Shavdia & 2 others [2005] KECA 102 (KLR)", Case Analysis (2005). Civil Appeal 78 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/102/eng@2005-10-07

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