David Komen Sirimu v Consolidated Bank of Kenya Ltd & another [2016] KEELC 182 (KLR)
The bottom line
#Kenya's Environment and Land Court stopped a bank's property sale because its foreclosure notices were defective and unproven as served.
What this practically means
#Executive summary
#Key legal issues
#Service of statutory notices under section 90 of the Land Act
Demand and statutory notices were duly served as they were sent by registered post to the plaintiff's postal address as per the charge document; but the 45-day redemption notice and notification of sale were not proved to have been served.
The court examined the charge document, spousal consent and affidavit evidence, which all showed the plaintiff's address as P.O. Box 5093-30100, Eldoret, with no evidence of change of address. Certificates of postage established service of the demand and statutory notices. For the redemption notice and notification of sale, no affidavit of service existed, and the burden lay on the defendant once service was denied.
Defectiveness of the statutory notice
The statutory notice was defective because it sought to recover Kshs.66,673,424/= against a charge securing Kshs.18,000,000/=.
The charge instrument secured Kshs.18,000,000/= advanced to Lomsons Enterprises Limited, yet the statutory notice demanded the entire principal debtor's debt far exceeding the secured amount. The discrepancy made the notice misleading, giving the plaintiff a prima facie case though not necessarily extinguishing the chargee's underlying rights.
Giella v Cassman Brown injunction threshold
Plaintiff established a prima facie case and balance of convenience, but not irreparable harm; injunction granted on the strength of the prima facie case and convenience, with liberty to restart the statutory process.
Applying the Giella principles, the court found a prima facie case arising from unproved service of the redemption notice and the misleading statutory notice. However, damages would be recoverable from the defendant, so irreparable harm was not shown. Balance of convenience favoured preserving the plaintiff's prime property pending trial.
Legal principles established
#- Where service of a 45-day redemption notice and notification of sale is denied, the chargee must prove service by affidavit of service
- A statutory notice demanding an amount exceeding the secured sum is misleading and defective
Court orders
#- 1.Temporary injunction restraining the defendants jointly and severally, their agents, from offering for sale, transferring, alienating or otherwise interfering with Eldoret Municipality Block 12/194 and Block 12/195 pending hearing and determination of the suit
- 2.Liberty granted to the defendant to restart the statutory process by issuing the relevant notices
- 3.Costs in the cause
- Jurisdiction invoked
- Original civil jurisdiction over land matters (interim injunction in a pending suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Komen Sirimu v Consolidated Bank of Kenya Ltd & another [2016] KEELC 182 (KLR)", Case Analysis (2016). Notice of Motion dated 20.1.2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/182/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.