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Court of AppealDismissedCourt of Appeal Appeal arising from Nairobi High Court Civil Case No. 465 of 2012· [2026] KECA 1108 (KLR)

L.n Property Development Co Ltd & 1 other v Fidelity Commercial Bank Limited

Court of Appeal of Kenya
12 June 2026
4,817 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a bank's property auction, ruling that borrowers who act on statutory notices cannot later claim the notices were defective.

What this practically means

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Executive summary

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This is a single unanimous judgment of the Court of Appeal at Nairobi (Kiage, Mohammed and Korir, JJA) dismissing the appellants' challenge to the High Court judgment of Nzioka J dated 16th July 2019, which had dismissed their suit against Fidelity Commercial Bank Limited. The appellants had sought a declaration that the public auction sale of L.R. Kajiado/Kisaju/xxxx-Kisaju was unlawful and void, a permanent injunction, and general damages, contending that statutory notices were sent to a wrong postal address and that the bank failed to remit treasury bill proceeds of Kshs 5,000,000 under a settlement proposal. The Court of Appeal, exercising first appellate jurisdiction, framed two issues: whether statutory notices were properly issued before the auction, and whether the appellants were entitled to damages. Following its own decision in Euro Bank Ltd v Twictor Investments, the court held that the decisive question is whether the chargor was actually afforded the 90-day and 45-day redemption periods, not whether each notice was formally perfect. It found that the 90-day statutory notice dated 7th June 2011 and the 45-day auctioneer's notice dated 1st December 2011 were served at the address in the charge document and on the directors, prompting the appellants to enter settlement negotiations. The debt remained unpaid because the treasury bill proceeds were never remitted despite the appellants' assurances, and the respondent accommodated them for about six months. Any grievance over the auctioneers' defective 21-day notice lay against the auctioneers themselves, who were not parties. The court found no basis for general damages, affirmed the High Court's findings, and dismissed the appeal with costs to the respondent.

Key legal issues

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01

Whether the requisite statutory notices were properly issued and served before the exercise of the statutory power of sale

Holding

The court held that service was duly effected. A 90-day statutory notice dated 7th June 2011 was issued to the address in the charge document, and copies of the 45-day auctioneer's notice were sent to the directors at the correct postal address despite one certificate of postage reflecting an incorrect number.

Reasoning

The court applied its own decision in Euro Bank, holding that the true question is whether the mortgagor was in fact given 90 days before sale, not whether each notice was formally impeccable. The appellants themselves pleaded receipt of the 1st December 2011 notification of sale and reacted with a settlement proposal, demonstrating that the notices prompted negotiation. The respondent accommodated the appellants for roughly six months while the treasury bill proceeds remained unremitted. Acting on the notice without complaining of invalidity cured any defect.

p. 9
02

Whether the appellants were entitled to general damages for improper exercise of the statutory power of sale

Holding

No damages were payable. The appellants had sufficient opportunity to redeem and failed to do so; the failure to remit treasury bill proceeds was not the respondent's responsibility.

Reasoning

The court found the debt remained unsettled because the treasury bill proceeds were never remitted despite assurances, and the non-perfection had been brought to the appellants' attention by email dated 2nd May 2012, to which they responded that they would effect an RTGS transfer. To the extent the complaint concerned the auctioneers' conduct (e.g. the 21-day notice bearing an incorrect postal address), the remedy lay against the auctioneers, who were not parties to the suit.

p. 10
03

The correct approach of a first appellate court to findings of fact made by the trial court

Holding

A first appellate court must reassess and re-evaluate the evidence and reach its own conclusions, but the jurisdiction to differ from findings of fact is exercised with caution.

Reasoning

Relying on Rule 31(1) of the Court of Appeal Rules, 2022, Gitobu Imanyara, Selle v Associated Motor Boat Co., and Peters v Sunday Post, the court restated that an appellate court has jurisdiction to review evidence to determine whether the original conclusion should stand, but must do so with caution since it neither saw nor heard the witnesses.

p. 8

Legal principles established

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  • Where a chargor is served with a statutory notice and a 45-day redemption notice and, acting on them, enters into negotiations for settlement but fails to pay the debt, the statutory power of sale has been properly exercised and the chargor cannot later complain of defective notice.
  • The decisive question on redemption notice is whether the chargor was in fact afforded the requisite 90-day and 45-day periods before sale, not whether every notice was formally perfect; conduct acting on a notice cures alleged impropriety.
  • Grievances concerning breaches of the Auctioneers Rules, such as defective service by auctioneers, ought properly to be directed against the auctioneers themselves, not the chargee.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent
On appeal from
High Court of Kenya at Nairobi
Civil Case No. 465 of 2012
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules, 2022 (Rule 31(1)), reviewing the decision of the High Court

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, "L.n Property Development Co Ltd & 1 other v Fidelity Commercial Bank Limited", Case Analysis (2026). Court of Appeal Appeal arising from Nairobi High Court Civil Case No. 465 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1108/eng@2026-06-12

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