Alexander Sombol Nahashon v Kenya Comercial Bank Kenya Limited & another [2016] KEELC 492 (KLR)
The bottom line
#A Kenyan court refused to stop a property auction because the borrower's guarantor admitted the debt, the default, and that the bank had followed the law.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
No prima facie case was established; the plaintiff admitted the charge, the default of Kshs.902,457/=, service of the statutory notices, and his inability to pay, and pointed to no wrong by the defendants.
The court found the plaintiff's own admissions fatal: he charged the properties to secure a loan to the principal debtor, admitted default and the amount due, admitted service of the requisite statutory notices, and admitted he had no money to settle the debt. Without any wrong committed by the defendants, there was no basis for the suit or the injunction and no prospect of a permanent injunction at trial.
Invocation of equity to obtain redemption time
Equity cannot be invoked where there is no gap in the law; equity follows the law and intervenes only where a legal remedy is lacking or circumstances were overlooked.
Counsel for the plaintiff asked the court to apply equity rather than law. The court held that equity follows the law and interferes only where important circumstances were disregarded by law or where the lack of a remedy at law would cause injustice. Since the plaintiff had established neither a legal nor equitable right and had not shown any wrong against him, the court could not invoke equity.
Legal principles established
#- An interlocutory injunction applicant must show prospects of obtaining a permanent injunction at trial, which requires a justiciable cause of action and actual or threatened injury to a legal or equitable right
- Equity follows the law and will only intervene where important circumstances were overlooked by the law or where the lack of a remedy at law would cause injustice
Court orders
#- 1.The plaintiff's application dated 16th May 2016 was dismissed
- 2.Costs of the application awarded to the defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over charged land and injunction applications
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alexander Sombol Nahashon v Kenya Comercial Bank Kenya Limited & another [2016] KEELC 492 (KLR)", Case Analysis (2016). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/492/eng@2016-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.