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ELCPartially AllowedELC Case (Eldoret) - application dated 28.11.2016 (suit number not stated in judgment)· [2017] KEELC 448 (KLR)

John Kipkugut Kurgat & another v Trans-National Bank (K) Limited & another [2017] KEELC 448 (KLR)

Environment and Land Court
20 November 2017
4,138 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped KCB from selling charged land because the bank served the wrong notice — lenders must strictly follow the Land Act's notice rules.

What this practically means

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Executive summary

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This was an interlocutory application dated 28 November 2016 in which the plaintiffs sought a temporary injunction restraining the defendants from selling, transferring or interfering with land parcel NANDI/KILIBWONI/605, offered as security for loan facilities of Kshs.10,000,000 advanced to the 2nd plaintiff by the 1st defendant bank under a letter of offer dated 25 March 2011. The plaintiffs complained that the bank varied the interest rate from 19% to 22.1% without notice, demanded an unlawful sum of Kshs.14,305,951.68, failed to issue valid statutory notices under sections 90 and 96 of the Land Act, 2012, failed to set a reserve price, and charged agricultural land without Land Control Board or spousal consent. The defendants denied these allegations, asserting full compliance with the statutory requirements and that the charge was executed in 2010 under the Registered Land Act, Cap 300, which did not require spousal consent. Applying the Giella v Cassman Brown principles, the court found that the formal demand of 12 November 2015 was not a notice of intention to exercise the statutory power of sale, and that the purported statutory notice was in fact a section 96 notice to sell giving 40 days rather than 90 days. Although the process server's evidence established that the notification of sale was served, no valid statutory notice - the cornerstone of such proceedings - was proved, so the plaintiffs established a prima facie case. Damages were held adequate since the charged properties became commodities of sale, but the balance of convenience favoured the plaintiffs, who were in occupation. The court granted the injunction, ordered recovery of the debt to commence afresh in compliance with sections 90 and 96 of the Land Act, and awarded costs of the application to the plaintiffs.

Key legal issues

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01

Whether a proper statutory notice under section 90 of the Land Act was issued

Holding

No valid statutory notice under section 90 was served; the purported notice was a section 96 notice to sell and gave 40 days instead of the required 90, so the plaintiffs established a prima facie case

Reasoning

The court examined the formal demand dated 12 November 2015 and the notice annexed as WR4. The demand did not fit the description of a notice of intention to exercise the statutory power of sale, and WR4 was a notice to sell under section 96 rather than the statutory notice contemplated by section 90. It also gave 40 days instead of 90 days. Although the process server, Maina Mwangi, testified credibly and the court found the notification of sale was served, service of the statutory notice itself was not proved, and that notice is the cornerstone of the chargee's action.

p. 6
02

Whether the plaintiffs would suffer irreparable injury

Holding

No - the charged properties, having been offered as security, became commodities for sale whose value can be ascertained and damages assessed

Reasoning

The court held that irreparable injury must be incapable of adequate compensation in damages. The defendant bank had been collecting rent since 2005, and the properties charged as security are capable of valuation. The plaintiffs could therefore be compensated in damages at the conclusion of the suit, provided the matter is fast-tracked for hearing.

p. 6
03

Balance of convenience

Holding

The balance of convenience lies in favour of the plaintiffs, who are in possession, and recovery must commence afresh in compliance with the Land Act

Reasoning

The court agreed with the plaintiffs that they have been in possession of the suit land for many years and that the dispute should be resolved before the property is interfered with. Declining the injunction would allow the defendants to advertise and alienate the land to the plaintiffs' detriment. However, since the 2nd plaintiff owes the debt, the chargee must restart the recovery process in accordance with sections 90 and 96 of the Land Act, 2012.

p. 6

Legal principles established

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  • A valid statutory notice under section 90 of the Land Act is the cornerstone of the exercise of the chargee's statutory power of sale; without it the chargee cannot lawfully sell
  • A notice under section 96 of the Land Act cannot be construed as a statutory notice under section 90

Court orders

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  1. 1.Temporary injunction restraining the defendants from selling, transferring or interfering with the plaintiffs' proprietary interests in NANDI/KILIBWONI/605 pending hearing and determination of the suit
  2. 2.The process of recovery of the debt to be carried out afresh in accordance with sections 90 and 96 of the Land Act, 2012
  3. 3.Costs of the application to the plaintiffs

Authorities

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Legislation

  • Land Actsections 90(1), 90(2)(a) and (b), 96(2), 98(1)(d), 98(1)(e), 98(2), 89
  • Banking Act, Cap. 488section 44A
  • Auctioneers Act, 1996not specified
  • Auctioneers Rules, 1997Rule 15
  • Registered Land Act, Cap. 300section 30
  • Land Registration Act No. 3 of 2012not specified
  • Agricultural Act (Cap 302, Land Control)Land Control Board consent requirements

Cases cited (5)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Francis Githinii Karobia v Stephen Kageni Gitau
    Civil Case 53 of 2005 (unreported)
  • Church of Christ of Latter-Day Saints-Kenya Registered Trustees v John Ndirangu & 2 Others
    Nairobi ELC Case No. 16 of 2011 (Unreported)
  • Albert Mario Cordeiro, Farida Rehmat Khan v Vishram Shamji
    eKLR (2015)
  • Rose Chepkurui Mibei v Bank of Africa & 2 others
    Kericho ELC No. 24/2015 eKLR (2015)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel NANDI/KILIBWONI/605

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, "John Kipkugut Kurgat & another v Trans-National Bank (K) Limited & another [2017] KEELC 448 (KLR)", Case Analysis (2017). ELC Case (Eldoret) - application dated 28.11.2016 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/448/eng@2017-11-20

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