Kesrec Agency Limited v Valley Auctioneers & another [2014] KEELC 388 (KLR)
The bottom line
#A Kenyan court allowed a lender to proceed with auctioning charged land because the borrower admitted the debt and did not pay the disputed amount into court.
What this practically means
#Executive summary
#Key legal issues
#Whether an affidavit whose jurat appears on its own page should be struck out
No. The preliminary objection fails because no prejudice was demonstrated and the overriding objective counsels against striking out pleadings for want of form.
The court held there was no evidence that the 2nd Defendant was prejudiced by the form of the jurat; indeed it responded to the depositions. Under Article 159 and Sections 1A and 1B of the Civil Procedure Act, courts should not strike out pleadings for form where no injustice or miscarriage would result, following Salat and Welcome Properties.
Whether an injunction should issue to restrain exercise of the statutory power of sale
No. The Plaintiff admitted indebtedness and arrears when the statutory notice issued, so no prima facie case with chances of success was established.
The Plaintiff did not deny the loan, the arrears, or the lawful issue of the statutory notice. Applying Mrao Ltd v First American Bank, a mortgagee will not be restrained where the amount claimed is not paid into court. An injunction cannot issue to protect charged land in the face of admitted non-payment.
Legal principles established
#- A procedural defect such as a jurat appearing on its own page does not vitiate proceedings unless prejudice or injustice is shown
- A mortgagee will not be restrained from exercising its power of sale merely because the amount due is in dispute, unless the mortgagor pays the amount claimed into court
Court orders
#- 1.The 2nd Defendant's Preliminary Objection is disallowed
- 2.The Application dated 28th August 2013 is dismissed with costs
- Jurisdiction invoked
- Article 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act (overriding objective)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kesrec Agency Limited v Valley Auctioneers & another [2014] KEELC 388 (KLR)", Case Analysis (2014). Application dated 28th August 2013 (suit re LR No. 13424 & 13430 Kaoyeni Malindi Municipality). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/388/eng@2014-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.