Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Motion dated 20.1.2015· [2016] KEELC 182 (KLR)

David Komen Sirimu v Consolidated Bank of Kenya Ltd & another [2016] KEELC 182 (KLR)

Environment and Land Court
4 November 2016
2,257 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
The plaintiff, David Komen Sirimu, moved the court by Notice of Motion dated 20 January 2015 seeking a temporary injunction restraining the defendants from selling, transferring or interfering with Eldoret Municipality Block 12/194 and 12/195, which he charged in 2007 to the 2nd defendant to guarantee Kshs.18,000,000/= advanced to Lomsons Enterprises Limited. He complained that the statutory notice demanded Kshs.66,673,424/= far above the secured sum, that no statutory notice or notification of sale was served on him, and that the reserved price of Kshs.24,000,000/= grossly undervalued property worth over Kshs.50 million. The defendants replied that the plaintiff was one of several guarantors of the principal debtor's debt, that demand and statutory notices were sent by registered post to his last known address, and that a 45-day redemption notice was personally received by him. The court found the demand and statutory notices were properly served at the plaintiff's postal address as per the charge document, but that no affidavit of service proved service of the 45-day redemption notice and notification of sale. It further found the statutory notice defective for demanding more than the secured sum. Applying Giella v Cassman Brown, the court held the plaintiff had a prima facie case and that the balance of convenience favoured protecting him from losing a prime property, though irreparable harm was not demonstrated. A temporary injunction was granted pending the hearing and determination of the suit, with liberty to the defendant to restart the statutory process, and costs in the cause.

Key legal issues

#
01

Service of statutory notices under section 90 of the Land Act

Holding

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.

Reasoning

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.

p. 3
02

Defectiveness of the statutory notice

Holding

The statutory notice was defective because it sought to recover Kshs.66,673,424/= against a charge securing Kshs.18,000,000/=.

Reasoning

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.

p. 3
03

Giella v Cassman Brown injunction threshold

Holding

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.

Reasoning

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.

p. 4

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. 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. 2.Liberty granted to the defendant to restart the statutory process by issuing the relevant notices
  3. 3.Costs in the cause

Authorities

#

Legislation

  • Banking ActSection 44
  • Land ActSection 90
  • Land ActSection 96(2)
  • Auctioneers RulesRule 15(d)
  • Auctioneers Act
  • Constitution of Kenya, 2010

Cases cited (1)

  • Giella vs Cassman Brown
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.