Mary Wanjiku Mwaniki & another v Dream Credit Limited [2017] KEELC 339 (KLR)
The bottom line
#A Kenyan court dismissed borrowers' bid to stop their land being auctioned, confirming lenders can sell charged property once default and proper notices are established.
What this practically means
#Executive summary
#Key legal issues
#Whether a statutory notice under Section 90 of the Land Act was served
The chargee served a 45 days Redemption Notice dated 6th April 2017 which the 1st Plaintiff acknowledged; the claim of no notice fails
The court found annexture MG2 showed service of the redemption notice stating the amount due and consequences of default. The 1st Plaintiff acknowledged receipt, so she could not allege ignorance of the default or demand. Section 90(1) uses discretionary language ('may'), so service was within the chargee's discretion and was in any event effected.
Whether the Plaintiffs established a prima facie case and irreparable loss
No; the 1st Plaintiff signed the charge, knew the consequences of default, and cannot claim irreparable loss while in default
The charge document showed the 1st Plaintiff as borrower and acknowledged her understanding of Sections 90 of the Land Act and 59 of the Land Registration Act. Having voluntarily offered the property as security and defaulted, she could not invoke irreparable loss. Authorities establish that a defaulting contracting party cannot obtain an injunction to restrain breach by the other party.
Balance of convenience
It tilts in favour of the Defendant because continued restraint would allow the debt to outstrip the value of the security
The court reasoned that the longer the 1st Plaintiff stayed without repaying, the higher the debt grew, risking an amount impossible to recover. Following Andrew M. Wanjohi v Equity Building Society, stopping the sale would expose the chargee to potentially substantial irrecoverable loss. The application was therefore dismissed.
Legal principles established
#- Once land is given as security for a loan, it becomes a commodity for sale upon default
- Section 90(1) of the Land Act gives the chargee a discretion ('may'), not a mandatory duty ('shall'), to serve notice on a defaulting chargor
- An applicant for an interlocutory injunction must come to court in good faith and with clean hands
Court orders
#- 1.The Plaintiffs'/Applicants' Notice of Motion dated 2nd October 2017 is dismissed entirely with costs to the Defendant/Respondent
- 2.The interim orders issued on 12th October 2017 are discharged
- Jurisdiction invoked
- Order 40 Rules 1 & 2 of the Civil Procedure Rules 2010; Sections 3A and 63(c) of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muturi v Wandere (Environment and Land Miscellaneous Case E008 of 2026) [2026] KEELC 5018 (KLR)[2026] KEELC 5018 (KLR)30 Jul 2026
- Elijah & another (Suing as the Personal Representatives of the Estate of Elijah Arap Cheruiyot) v Langat (Sued as the Personal and Legal Representative of the Estate of the Late James Kipkirui Langat) & 5 others (Environment and Land Case E008 of 2023) [2025] KEELC 5515 (KLR)[2025] KEELC 5515 (KLR)24 Jul 2025
Cite this brief
#Cite this brief
Caselaw, "Mary Wanjiku Mwaniki & another v Dream Credit Limited [2017] KEELC 339 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 2nd October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/339/eng@2017-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.