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ELCDismissedNot stated in judgment (Notice of Motion dated 2nd October 2017)· [2017] KEELC 339 (KLR)

Mary Wanjiku Mwaniki & another v Dream Credit Limited [2017] KEELC 339 (KLR)

Environment and Land Court / High Court sitting at Thika
8 December 2017
2,512 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The 1st and 2nd Plaintiffs moved the court by Notice of Motion dated 2nd October 2017 under Order 40 Rules 1 & 2 of the Civil Procedure Rules and Sections 3A and 63(c) of the Civil Procedure Act, seeking a temporary injunction to restrain Dream Credit Ltd from exercising its statutory power of sale over Title No. Limuru/Ngecha/3423, charged to secure a loan facility of Kshs.1,500,000/= disbursed on 15th September 2016. The Plaintiffs contended that no statutory notice under Section 90 of the Land Act was served, and that they would suffer irreparable loss if the auction scheduled for 4th October 2017 proceeded. The Defendant, through its Head of Operations, Martin Gichovi, confirmed the charge and default, and produced a 45 days Redemption Notice dated 6th April 2017, acknowledged by the 1st Plaintiff, plus a further notice dated 28th July 2017 demanding Kshs.2,813,200/=. The Defendant also contended the auction had already taken place on 4th October 2017. The court held that Section 90(1) of the Land Act is discretionary ('may' not 'shall'), that redemption notices were duly served and acknowledged, and that the 1st Plaintiff, a knowing defaultor who waited until two days before the auction, lacked the good faith and clean hands required for equitable relief. Applying Giella v Cassman Brown, the court found no prima facie case, no irreparable loss, and balance of convenience favouring the Defendant. The application was dismissed entirely with costs to the Defendant, and interim orders issued on 12th October 2017 were discharged.

Key legal issues

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01

Whether a statutory notice under Section 90 of the Land Act was served

Holding

The chargee served a 45 days Redemption Notice dated 6th April 2017 which the 1st Plaintiff acknowledged; the claim of no notice fails

Reasoning

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.

p. 4
02

Whether the Plaintiffs established a prima facie case and irreparable loss

Holding

No; the 1st Plaintiff signed the charge, knew the consequences of default, and cannot claim irreparable loss while in default

Reasoning

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.

p. 5
03

Balance of convenience

Holding

It tilts in favour of the Defendant because continued restraint would allow the debt to outstrip the value of the security

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Plaintiffs'/Applicants' Notice of Motion dated 2nd October 2017 is dismissed entirely with costs to the Defendant/Respondent
  2. 2.The interim orders issued on 12th October 2017 are discharged

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rules 1 & 2
  • Civil Procedure Act, Cap 21Section 3A
  • Civil Procedure Act, Cap 21Section 63(c)
  • Land Act, No. 6 of 2012Section 90(1)
  • Land Registration ActSection 59

Cases cited (6)

  • Amalo Company Ltd v Trust Bank Ltd
    Kisumu HCCC No.7 of 2004(B)
  • Mrao Ltd v First American Bank of Kenya Ltd
    (2003) KLR
  • Kenya Breweries Ltd v Okeyo
    (2002) 1 EA
  • Isaack O. Litali v Ambrose W. Subai & 2 others
    HCCC No.2092 of 2000
  • Andrew M. Wanjohi v Equity Building Society & 7 Others
    null
  • Giella v Cassman Brown & Co Ltd
    1973 EA 358
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.