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Court of AppealDismissedCivil Appeal No. 273 of 2009· [2019] KECA 292 (KLR)

Winfred Wambui Kingori v Paramount Universal Bank Limited & 2 others [2019] KECA 292 (KLR)

Court of Appeal of Kenya
11 October 2019
2,059 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A misspelled name on a statutory notice did not invalidate a bank's sale of charged property, since the borrower received and acted on the notice.

What this practically means

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Executive summary

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This Court of Appeal judgment arises from an interlocutory application in H.C.C.C. No. 605 of 2003, in which the appellant, a trader at Gikomba market, sued Paramount Universal Bank Limited over loan facilities of Kshs.6,500,000 and an overdraft secured by charges over L.R. No. 14600 and L.R. No. 13824, a deposit of title over Nairobi/Block 82/3887 and a motor vehicle. She sought temporary injunctions restraining the bank and the 2nd and 3rd respondents from selling or alienating the charged properties, alleging, among other things, that no statutory notice was served before the bank exercised its statutory power of sale and that charges had been created over her properties without her knowledge. Kimaru, J. dismissed the application by a ruling dated 1st July 2009, finding the application without merit. On appeal, counsel for the appellant abandoned grounds relating to properties already sold and pressed the point that the statutory notice had given only seven days rather than the three months required by section 69A(1) of the Indian Transfer of Property Act, and that the notice misdescribed her as 'Wilfred' instead of 'Winfred'. The respondents maintained that a proper three months notice had been served, that the appellant received and acted on it, and that the 2nd and 3rd respondents were innocent purchasers. The Court of Appeal agreed with the High Court: the typographical error in the addressee's name did not invalidate a notice sent to the correct postal address, received and acted upon; and the advocate's certification on the charge documents satisfied section 69B. The appeal was dismissed with costs to the respondents. The substantive suit remains pending before the trial court.

Key legal issues

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01

Effect of a misdescription of the addressee's name in a statutory notice

Holding

A typographical error in the name of the addressee of a statutory notice does not invalidate the notice where it was sent to the correct postal address, was received and was acted upon by the chargor.

Reasoning

The High Court judge had considered the typographical error ('Wilfred' instead of 'Winfred') and found that the notice was sent to the appellant's postal address, was received by her and was acted upon, as she responded to it seeking indulgences to repay the loans. The Court of Appeal agreed, holding that the appellant was duly served with the 3 months notice required by section 69A(1) of the Indian Transfer of Property Act. Having received the notice and made requests for consideration that were granted but not met, she could not complain of defective service. This finding of valid service disposed of the principal ground of challenge to the sale.

p. 3
02

Compliance with section 69B of the Indian Transfer of Property Act (explanation of the effect of the charge to the chargor)

Holding

The statutory requirement was satisfied where an advocate certified on the charge documents that he had explained the effect of the loan documents to the chargor before execution.

Reasoning

The appellant contended that the effect of section 69(4)/69B of the Indian Transfer of Property Act, requiring that an advocate explain the effect of the charge to the chargor, had not been satisfied, and that she was unaware she was charging her properties. The court examined the charge documents and noted the advocate's certification that the effect of the loan documents had been explained to the appellant, who executed them after understanding the effect of charging her properties to secure the loan. On that documentary evidence the court found the statutory requirement met and rejected the ground. No contrary evidence displaced the advocate's certification.

p. 3
03

Interference with the exercise of the High Court's discretion on an interlocutory application

Holding

An appellate court will not interfere with the exercise of discretionary powers by the High Court unless it finds the discretion was not properly exercised; here the discretion was properly exercised.

Reasoning

Counsel for the 1st respondent submitted that the learned judge had exercised discretionary powers and the Court of Appeal should not interfere unless the discretion had not been properly exercised. The court, considering the record and submissions, reached the same conclusions as the High Court judge on both service of statutory notice and compliance with section 69B, and found no basis to disturb the dismissal of the application for a temporary injunction. The appeal, being a challenge to an interlocutory discretionary decision, therefore failed on its merits. The underlying suit remained unheard and the court deliberately refrained from commenting on matters reserved for the trial court.

p. 3

Legal principles established

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  • A statutory notice addressed to a chargor with a typographical error in the addressee's name, but sent to the chargor's correct postal address, actually received, and acted upon by the chargor, constitutes valid service of the statutory notice required before exercise of the statutory power of sale.
  • Where an advocate has certified on the charge documents that the effect of the loan documents was explained to the chargor, the requirements of section 69B of the Indian Transfer of Property Act are satisfied.
  • A charge who received a valid statutory notice and failed to repay the loans cannot restrain the sale of the charged property; the sale follows as a consequence of the failure to pay.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondents

Authorities

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Legislation

  • Indian Transfer of Property Actsection 69A(1)
  • Indian Transfer of Property Actsection 69B
  • Indian Transfer of Property Actsection 69(4)
  • Indian Transfer of Property Actsection 52
  • Transfer of Property Actsection 69B
  • Evidence Actsection 97(1)
  • Civil Procedure RulesOrder VI rules 6 and 9
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 605 of 2003
Jurisdiction invoked
First appeal from an interlocutory ruling of the High Court (appellate jurisdiction of the Court of Appeal)

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, "Winfred Wambui Kingori v Paramount Universal Bank Limited & 2 others [2019] KECA 292 (KLR)", Case Analysis (2019). Civil Appeal No. 273 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/292/eng@2019-10-11

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