Wamidha v Co-operative Bank of Kenya Limited & 4 others
The bottom line
#Kenya's Court of Appeal confirmed that a bank validly sold a guarantor's land after sending statutory notices to her last known address.
What this practically means
#Executive summary
#Key legal issues
#Whether the bank unilaterally varied the charge by advancing an extra facility of Kshs 65,000, discharging the guarantor
No. DW1 did not admit an extra facility; the overdraft never exceeded the Kshs 500,000 limit, so the charge was not discharged.
The court examined DW1's cross-examination and found no admission of an extra Kshs 65,000 facility. The trial judge, who had seen the statement of account (absent from the appellate record), found the account was overdrawn only to Kshs 66,450.55 after honouring a cheque, well within the Kshs 500,000 limit. The bank kept the guarantor's liability within the secured sum, so the charge was not discharged.
Whether service of the statutory notice was validly effected
Yes. Notice sent to the appellant's last known postal address, which she had given to the bank and continued to use, was sufficient.
The appellant admitted in cross-examination that P.O Box 90182 Mombasa was the address she gave the bank, that she changed her address in 2009 without notifying the bank, and that she still used the old address in 2012. The court held the bank could not be expected to serve any other address, and service on the last known address discharged the statutory obligation.
Whether the notification of sale was invalid
The issue was not pleaded and could not be raised for the first time in final submissions.
The court endorsed the trial judge's finding that the further amended plaint of 19th May 2014 did not raise any issue concerning the notification of sale. A matter absent from the pleadings cannot become contentious via final submissions, so this ground of appeal failed.
Legal principles established
#- A first appellate court must re-appraise the evidence and draw its own inferences before reaching an independent conclusion.
- A chargor discharges its statutory obligation to give notice by sending the statutory notice to the chargee's last known address; a chargee who changes address without notifying the chargee cannot complain of non-service.
- An issue not raised in the pleadings cannot become a matter of contention when raised for the first time in final submissions.
Court orders
#- 1.The appellant's appeal is dismissed with costs to the respondents who took part in the appeal, namely the 1st and 4th respondents
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 429 of 2002
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (rule 29), appeal from the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wamidha v Co-operative Bank of Kenya Limited & 4 others", Case Analysis (2022). Civil Appeal 307 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/596/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.