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ELCDismissedNot stated in the judgment (notice of motion dated 31st August 2015)· [2016] KEELC 426 (KLR)

Registered Trustees/Archdiocese of Kisumu v Eco Bank Kenya Limited [2016] KEELC 426 (KLR)

Environment and Land Court
11 October 2016
1,494 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kisumu court allowed the bank to continue recovering its Kshs.275 million debt because the church hid key facts and hadn't proven repayment.

What this practically means

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Executive summary

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The Registered Trustees/Archdiocese of Kisumu, as Applicant, moved the Environment and Land Court at Kisumu by notice of motion dated 31st August 2015 seeking an interlocutory injunction to restrain Eco Bank Kenya Limited from realizing, selling, auctioning or disposing of land parcel Kisumu/Konya/2677, which secured various loan facilities, pending the hearing and determination of the suit. The Applicant asserted it had serviced the loans to completion and that the demand of Kshs.275,241,281.52 was unlawful and irregular. The Respondent opposed, showing loans aggregating about Kshs.170,000,000 (later restructured twice to an aggregate of about Kshs.262,101,113.10) secured by charges over the suit property, continuing arrears despite a payment of Kshs.50,000,000 in February 2015, a statutory notice, an auctioneer's notice, and a valuation and advertisement of the property for auction, and contending that its power of sale had properly arisen. The court framed two issues: whether a prima facie case for an interlocutory injunction was established, and costs. It found the Applicant's claim of full repayment untrue and at variance with the Respondent's documentary evidence; that the Applicant failed to disclose the negotiations and two restructurings and its continued default, breaching its duty of full and frank disclosure; and that it had not established a prima facie case with a probability of success per Mrao v First American Bank. The court also declared the interim orders of 1st September 2015, issued by a Deputy Registrar without jurisdiction, null and void ab initio. The application was dismissed with costs, interim orders set aside, and the Respondent permitted to realize the security upon compliance with statutory notice requirements.

Key legal issues

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01

Whether the Applicant established a prima facie case for an interlocutory injunction

Holding

The Applicant did not establish a prima facie case with a probability of success; its claim that the loans were fully serviced was rebutted by the Respondent's documentary evidence showing an outstanding demand of Kshs.275,241,281.52 and continuing arrears.

Reasoning

The Applicant deponed that it had cleared all loan facilities obtained between November 2007 and April 2012, but the Respondent's documentary evidence showed demands for Kshs.275,241,281.52, an auction notice for Kshs.307,810,560.30, and that even after a payment of Kshs.50,000,000 in February 2015 the facilities remained in arrears. The depositions were found to be untrue and at variance with the documents, so the Mrao threshold of a right apparently infringed was not met.

p. 3
02

Whether the Applicant's failure to make full disclosure disentitled it to the injunction

Holding

The Applicant failed to make full disclosure of the loan negotiations and two restructurings and its continued default, and therefore could not obtain any advantage from the proceedings.

Reasoning

The court found the Applicant did not disclose the negotiation sessions with the Respondent that resulted in two restructurings of the loan facilities, nor that it failed to service the restructured facilities within the agreed timelines. Relying on the duty of candour as articulated in Abraham Mutai & 5 others v Paul M. Mutwii, the court held that an applicant who fails to make the fullest possible disclosure cannot obtain any advantage from the proceedings and stands to lose any advantage already obtained.

p. 3
03

The validity of the interim orders issued by the Deputy Registrar on 1st September 2015

Holding

The interim orders were issued without jurisdiction since the file had been referred to the ELC duty Judge in Eldoret, and were null and void ab initio and set aside.

Reasoning

The Deputy Registrar in Kisumu directed the application to be placed before the ELC duty Judge in Eldoret, but the matter was instead placed before Hon. Moseti (possibly a Deputy Registrar at Eldoret) who granted interim orders in terms of prayer 2. The court found these orders were granted without jurisdiction because the file had been referred to the duty Judge, and that such orders are null and void ab initio, and set them aside.

p. 4

Legal principles established

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  • An applicant for interlocutory relief is under a duty to make the fullest possible disclosure of all material facts, and non-disclosure disqualifies the applicant from any advantage in the proceedings.
  • A prima facie case, as defined in Mrao Ltd v First American Bank of Kenya Ltd, requires a right which has apparently been infringed so as to call for an explanation from the opposite party; failure to establish it disentitles the applicant to a temporary injunction.
  • Interim orders issued without jurisdiction are null and void ab initio.

Court orders

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  1. 1.The Applicant's notice of motion dated 31st August 2015 is dismissed with costs.
  2. 2.The interim orders of 1st September 2015 are set aside.
  3. 3.The Respondent is at liberty to proceed with the realization of the charged security once the relevant statutory provisions on notices are complied with.

Authorities

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Legislation

  • Statutory notice provisions governing exercise of the power of sale (statutory notices referred to generally)the relevant statutory provisions on notices

Cases cited (2)

  • Mrao Limited –V- First American Bank of Kenya Limited & 2 others
    [2003] KLR 126
  • Abraham Mutai & 5 others –V- Paul M. Mutwii
    Nairobi HCC No. 382 of 2014
Jurisdiction invoked
Environment and Land Court jurisdiction over the charged land parcel Kisumu/Konya/2677 (interlocutory injunctive relief); no specific constitutional or statutory provision cited

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Registered Trustees/Archdiocese of Kisumu v Eco Bank Kenya Limited [2016] KEELC 426 (KLR)", Case Analysis (2016). Not stated in the judgment (notice of motion dated 31st August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/426/eng@2016-10-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.