George Abonyo Obeto t/a Rakwel Bodybuilders v Eco Bank Kenya Limited (Environment & Land Case 241 of 2016) [2017] KEELC 580 (KLR)
The bottom line
#A Kisumu court refused to stop Eco Bank from selling charged land because the borrower admitted defaulting and never challenged the charge's legality.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success for a temporary injunction
No prima facie case established; the application dismissed
The Plaintiff applied for and accepted a Kshs.1,500,000 facility under a letter of offer dated 29th December 2014, signed on every page, and charged Kisumu/Pandpieri/1594. He conceded default, attributed to illness that began in 2012 - two years before the loan - and did not controvert the Defendant's evidence that the LPO proceeds were never routed through his account as agreed. He also never pleaded that the charge was illegal. No prima facie case or probability of success was shown, so the injunction could not issue.
Whether the alleged absence of the charge document undermined the Defendant's position
No - legality of the charge was never raised by the Plaintiff in the pleadings or affidavit
Counsel for the Plaintiff suggested no legal charge existed because the Defendant did not avail a copy of the charge document. The court found the Plaintiff himself had admitted applying for the loan and charging the property in the plaint and supporting affidavit. Since the existence or legality of the charge was never put in issue, the Defendant had no obligation to prove it, and the submission failed.
Legal principles established
#- Where the existence or legality of a charge over suit land is not raised as an issue in contention by the plaintiff in the pleadings and affidavit evidence, the defendant bears no obligation to tender evidence to prove it
- A party who has applied for, accepted and benefited from a loan facility secured by a charge cannot obtain an injunction by pleading illness that predated the facility and without contesting the charge or seeking taking of accounts
Court orders
#- 1.The Plaintiff's notice of motion dated 9th September 2016 is dismissed
- 2.Costs of the application awarded to the Defendant
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (statutory basis not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Abonyo Obeto t/a Rakwel Bodybuilders v Eco Bank Kenya Limited (Environment & Land Case 241 of 2016) [2017] KEELC 580 (KLR)", Case Analysis (2017). Notice of motion dated 9th September 2016 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/580/eng@2017-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.