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ELCDismissedNot stated in the judgment· [2013] KEELC 79 (KLR)

Michael Ronoh Kimutai & 2 Others v Consolidated Bank Of Kenya Ltd [2013] KEELC 79 (KLR)

Environment and Land Court
24 September 2013
4,381 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a family's bid to stop their bank from auctioning charged land, ruling they failed to prove the properties were matrimonial homes.

What this practically means

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Executive summary

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The three plaintiffs had charged three properties (in Eldoret, Karuna and Kitale) to the defendant bank as security for a loan of about Kshs. 15 million advanced to Uday Patel & Company Limited. After default, statutory notices issued, auctioneers were instructed and the properties were advertised for sale on 10th May 2013. The plaintiffs filed an Originating Summons under Order 37 Rule 4 of the Civil Procedure Rules seeking postponement of the sale for at least six months, relying on Sections 103 and 104 of the Land Act, 2012, and contending that the properties were matrimonial property and that they intended to sell another property at Mlolongo to offset the debt. The bank opposed, arguing that all notices were duly issued, that the plaintiffs had made no attempt to redeem or propose payment, and that the Mlolongo proposal was speculative. The court held that relief under Sections 103 and 104 is tied to the right of discharge under Section 85(3) and does not extend to a chargor seeking time to source alternative funding. The only possible route was Sections 105 and 106, which permit reopening of a charge secured on a matrimonial home. The Kitale and Karuna properties were not averred to be matrimonial homes. As to the Eldoret property, although the 1st plaintiff produced a marriage certificate, no title or search documents were produced, and the auctioneer's advertisement indicated proprietors who could not be man and wife. The court found no proof on a balance of probabilities that the Eldoret property was a matrimonial home. The entire suit therefore failed and the Originating Summons was dismissed with costs.

Key legal issues

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01

Whether a chargor may obtain relief under Sections 103 and 104 of the Land Act to postpone a chargee's exercise of its statutory power of sale

Holding

No; that relief is tied to the right of discharge under Section 85(3) and does not cover a mere request for time to source funds elsewhere.

Reasoning

Section 103 relief is expressly directed at remedies under Section 85(3)(a) and (b), which deal with the right to discharge the charge before expiry of its term. The plaintiffs were not seeking to redeem early but to stay the sale while they sought alternative funding, a form of relief the statutory scheme does not contemplate.

p. 5
02

Whether the charge on the suit properties could be reopened as charges on matrimonial homes under Sections 105 and 106 of the Land Act

Holding

No; two properties were never averred to be matrimonial homes, and no evidence proved the Eldoret property to be one.

Reasoning

Relief under Section 106 presupposes a charge secured on a matrimonial home within Section 105. The Kitale and Karuna properties were not claimed as matrimonial homes. As to the Eldoret property, the plaintiffs produced no title documents or other proof; the only evidence, the auctioneer's advertisement, showed proprietors who could not be man and wife, so no presumption of a matrimonial home arose.

p. 7

Legal principles established

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  • Relief under Sections 103 and 104 of the Land Act relates to the right of discharge under Section 85(3), not to a general postponement of the exercise of the chargee's power of sale to enable the chargor source alternative funding.
  • The court's power to reopen a charge under Sections 105 and 106 of the Land Act can only be exercised where the charge is secured on a matrimonial home.
  • A chargor seeking relief on the basis that charged land is a matrimonial home bears the burden of proving that fact on a balance of probabilities.

Court orders

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  1. 1.The Originating Summons is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 Rule 4
  • Land Act, 2012Sections 85(1)-(5), 90, 103, 104, 105, 106
  • African Christian Marriage and Divorce Act (Cap 151), Laws of Kenya

Cases cited (2)

  • Gimalu Estates Ltd & 4 Others vs International Finance Corporation & Another
    (2006) eKLR
  • Harroil Petroleum Holding Ltd vs Consolidated Bank Ltd & Another
    Eldoret E & L No. 335 of 2013
Jurisdiction invoked
Order 37 Rule 4 of the Civil Procedure Rules, 2010, read with Sections 85, 103-106 of the Land Act, 2012

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, "Michael Ronoh Kimutai & 2 Others v Consolidated Bank Of Kenya Ltd [2013] KEELC 79 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/79/eng@2013-09-24

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