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Court of AppealPartially AllowedCivil Appeal 26 of 2002· [2009] KECA 250 (KLR)

NATIONAL BANK OF KENYA LIMITED v SHIMMERS PLAZA LIMITED [2009] KECA 250 (KLR)

Court of Appeal of Kenya
3 July 2009
1,824 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court can stop a bank from selling your property, but only until the bank serves a valid statutory notice — not until the whole case ends.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Bosire, Githinji and Visram, JJA) allowed in part an interlocutory appeal against a ruling of Onyango Otieno, J. dated 4th December 2001 in H.C.C.C. No. 229 of 2001, which had granted Shimmers Plaza Limited an interlocutory injunction restraining National Bank of Kenya from selling charged property L.R. No. 1870/IX/128 Westlands pending the hearing and determination of the suit. The bank had lent facilities to Trade Wings Ltd, secured by a guarantee and a charge capped at Shs.200,000,000, then demanded Shs.942,602,589.05 and advertised the property for auction. The High Court found the statutory notice defective because it wrongly took effect from its date rather than from service, and granted an injunction to the determination of the suit without considering irreparable harm. The Court of Appeal upheld the finding that the notice was invalid under Section 69A(1)(a) of the Transfer of Property Act, but held the trial judge failed to exercise his discretion judicially: an injunction running to the determination of the suit frustrated the bank's statutory right to realise the security upon a valid notice. The Court set aside the injunction and substituted one lasting only until the bank serves a fresh, valid statutory notice, and awarded the appellant the costs of the appeal. The underlying liability issues remain for trial.

Key legal issues

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01

Scope of an interlocutory injunction restraining a mortgagee's statutory power of sale where the only defect is an invalid statutory notice

Holding

The injunction should be limited in duration until the mortgagee serves a fresh statutory notice complying with the law; an injunction until the determination of the suit improperly frustrates the mortgagee's statutory right.

Reasoning

The Court accepted the trial judge's finding that the notice was defective, but held that the injunction's duration is a matter of judicial discretion. Since the judge had conclusively determined the validity of the notice at the interlocutory stage and the respondent conceded nothing further remained on that issue, an injunction running to the determination of the suit went beyond protecting the respondent and frustrated the bank's statutory right of sale upon a compliant notice. Discretion was therefore not exercised judicially and the order was varied.

p. 3
02

Effect of a trial court conclusively determining an issue at an interlocutory stage

Holding

Where a judge conclusively determines an issue (here the validity of the statutory notice) at the interlocutory stage, the remaining interlocutory restraint should be tailored to that determination rather than extended to the whole suit, subject to outstanding issues on liability.

Reasoning

The Court observed that the superior court had made a distinct finding that the statutory notice was flawed, a finding not challenged on appeal and conceded by the respondent's counsel. Although other issues on the respondent's liability under the guarantee and charge remained outstanding, the trial judge expressly declined to base his discretion on those issues, and the respondent gave no notice of affirmation on them. The Court thus confined the substituted injunction to the notice issue.

p. 3
03

Requirements of a valid statutory notice under Section 69A(1) of the Transfer of Property Act

Holding

A statutory notice under Section 69A(1)(a) of the Transfer of Property Act must provide for the mortgage money to be payable three months after service of the notice; a notice stating payment is due three months from the date of the notice, and citing the wrong statute, is invalid.

Reasoning

The Court reproduced Section 69A(1)(a) of the TPA, which requires default for three months after service of the notice. The notice in question cited the Registration of Titles Act and stated monies were payable within three months from the date of the demand notice. The Court agreed with the trial judge's finding, drawn from a Court of Appeal authority, that a notice which does not state that the sale takes place after three months from service is invalid.

p. 3

Legal principles established

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  • Where an interlocutory injunction restrains a mortgagee from exercising its statutory power of sale solely because the statutory notice issued was invalid, the injunction must be limited in duration to the service of a fresh valid statutory notice, not to the determination of the suit.
  • The duration of an interlocutory injunction is at the sole discretion of the trial judge and depends on the circumstances of each case; an injunction lasting until the determination of the suit must not frustrate the statutory right of a mortgagee to realise the security upon a valid notice.

Court orders

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  1. 1.Appeal allowed
  2. 2.The order of injunction granted by the superior court set aside
  3. 3.Substituted order of injunction restraining the defendant/respondent from selling, disposing of, transferring or otherwise dealing with Title Number I.R. No. 55525 (L.R. No. 1870/IX/128) situate in Westlands, Nairobi until such time as it shall have served the plaintiff with a valid statutory notice in accordance with the law
  4. 4.Costs of the appeal awarded to the appellant

Authorities

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Legislation

  • Transfer of Property Act (TPA)Section 69A(1)(a)
  • Registration of Titles Act (Cap 281, Laws of Kenya)cited in the statutory notice
  • Civil Procedure RulesOrder XXXIX Rule 2(2)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 229 of 2001
Jurisdiction invoked
First appeal against an interlocutory ruling of the High Court under the Civil Procedure Rules (Order XXXIX Rule 2(2) Civil Procedure Rules); no constitutional or appellate-jurisdiction provision is cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "NATIONAL BANK OF KENYA LIMITED v SHIMMERS PLAZA LIMITED [2009] KECA 250 (KLR)", Case Analysis (2009). Civil Appeal 26 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/250/eng@2009-07-03

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