Michael Ronoh Kimutai & 2 Others v Consolidated Bank Of Kenya Ltd [2013] KEELC 79 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the charge on the suit properties could be reopened as charges on matrimonial homes under Sections 105 and 106 of the Land Act
No; two properties were never averred to be matrimonial homes, and no evidence proved the Eldoret property to be one.
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.
Legal principles established
#- 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
#- 1.The Originating Summons is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.