Eliazer Kiprugut Kosgei v Barclays Bank of Kenya & another [2013] KEELC 120 (KLR)
The bottom line
#A Kenyan court stopped Barclays from selling a farmer's land because the bank had no Land Control Board consent for the charge.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
Plaintiff demonstrated a prima facie case with probability of success based on absence of land control consent
The court applied Giella v Cassman Brown. The suit land is undisputedly agricultural land in a land control area; Section 6(1) of the Land Control Act renders a charge over such land void for all purposes without board consent. The minutes of the alleged consent meeting of 19 March 2009 contained no entry for the suit land, while the bank produced the consent but no minutes. This established a prima facie case.
Irreparable loss
Plaintiff would suffer irreparable loss if the land were sold
The court found that damages would not adequately compensate the loss of the suit land, which the plaintiff described as the only home he knows. Having found a prima facie case and irreparable loss, the Giella test was satisfied and an injunction followed.
Statutory notices and auction conduct
Notices appeared duly issued and the auctioneer appeared authorized, but these were preliminary views open to reconsideration
The court noted service of a Section 74(1) and (2) Registered Land Act statutory notice, a 45-day redemption notice and notification of sale under the Auctioneers Rules 1997, and a certificate of service. It also gave the auctioneer, holder of a Class B licence, the benefit of the doubt and viewed an office accessible to the public as capable of hosting a public auction, all without final determination.
Default and statutory power of sale
The plaintiff was in arrears, entitling the bank to exercise its statutory power of sale, subject to validity of the charge
The plaintiff's bare assertion of repayment was unsupported; account statements showed arrears. The court accepted the bank was entitled to exercise its statutory power of sale, but this right was predicated on a valid charge, which was impugned for want of land control consent.
Legal principles established
#- A charge over agricultural land within a land control area is void for all purposes unless the land control board has given its consent
- Where the board's minutes contain no entry of consent, prima facie no consent was issued, and the party asserting consent should produce the minutes
Court orders
#- 1.An order of injunction restraining the 1st defendant, by itself or through its servants/agents, from offering for sale or selling the suit land until final determination of the suit
- 2.An order barring the 1st defendant, by itself or through its servants/agents, from dealing in any other way with the suit land until final determination of the suit
- 3.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Order 40 Rules 1 and 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, CAP 21, Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliazer Kiprugut Kosgei v Barclays Bank of Kenya & another [2013] KEELC 120 (KLR)", Case Analysis (2013). Eldoret HCCC (injunction application within suit; suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/120/eng@2013-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.