Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment provided· [2016] KEELC 492 (KLR)

Alexander Sombol Nahashon v Kenya Comercial Bank Kenya Limited & another [2016] KEELC 492 (KLR)

Environment and Land Court
27 May 2016
1,271 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
The plaintiff, guarantor of a loan advanced by the 1st defendant to Bishar Mohammed Isaac, and chargor of LR No. Ngong/Ngong/56272 and LR No. Ngong/Ngong/56041, moved the court by application dated 16th May 2016 seeking an injunction to restrain the defendants from auctioning the suit properties, advertised for sale on 27th May 2016 through the 2nd defendant. The plaintiff admitted that a sum of Kshs.902,457/= remained unpaid by the principal debtor, who had gone underground, and sought 90 days to raise the amount and redeem the properties valued at Kshs.5,500,000/=. The defendants opposed through grounds of opposition dated 20th May 2016, contending the conditions for an interlocutory injunction were not met. Counsel for the defendants, Mr. Chege, argued that granting the injunction would amount to re-writing the charge agreement, citing Kundan Sighn Construction International Ltd v Bank of Africa Kenya Ltd & Another (2015) eKLR. The court agreed with the defendants: the plaintiff had not established a prima facie case, having admitted the charge, the default, service of the requisite statutory notices, and his inability to pay, and having pointed to no wrong by the defendants. The court further held the plaintiff showed no prospects of obtaining a permanent injunction - which he had not even sought in the plaint - and that equity follows the law and cannot be invoked where there is no gap in the law or absence of a remedy at law. The application dated 16th May 2016 was dismissed with costs to the defendants on 27th May 2016.

Key legal issues

#
01

Prima facie case for interlocutory injunction

Holding

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.

Reasoning

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.

p. 2
02

Invocation of equity to obtain redemption time

Holding

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.

Reasoning

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.

p. 2

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. 1.The plaintiff's application dated 16th May 2016 was dismissed
  2. 2.Costs of the application awarded to the defendants

Authorities

#

Cases cited (1)

  • Kundan Sighn Construction International Ltd Vs. Bank of Africa Kenya Ltd. & Another
    (2015) eKLR
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.