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ELCDismissedNotice of Motion dated 18th July 2017 (suit number not stated in the judgment)· [2017] KEELC 688 (KLR)

George Muritu Gathecha v Family Bank Limited [2017] KEELC 688 (KLR)

Environment and Land Court
20 December 2017
3,776 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who defaults on a bank loan cannot stop his property's sale by injunction without showing a genuine plan to repay.

What this practically means

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Executive summary

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The Plaintiff, George Muritu Gathecha, moved the Environment and Land Court at Thika by Notice of Motion dated 18th July 2017 seeking a temporary injunction restraining the Defendant bank from repossessing, advertising, auctioning or selling his property Title No. Thika Block XI/1036, charged to secure a Kshs.10,000,000 loan facility, and an order compelling the Defendant to release loan documents and statements. He alleged the property had been advertised for sale on 2nd August 2017 without statutory notice, and that the bank had closed his loan account without notice after a purported loan rescheduling agreement with the Credit Manager. The Defendant, through its Senior Legal Counsel Antony Ouma, denied these allegations, showing that the Plaintiff defaulted almost immediately after disbursement in May 2016, that demand letters, a statutory notice under Section 90(1) of the Land Act dated 11th November 2016, and a 45-day redemption notice were all served by registered post, and that a valuation of the property existed. The Court, L. Gacheru J, applied the established Giella-style criteria. It found no prima facie case: the Bank Statement contradicted the Plaintiff's claim of uninterrupted repayment, service of the statutory notice was proved by certificate of posting, and the Defendant's statutory power of sale under Section 96(1) had crystallised. Irreparable loss was not established since the charged property, being valued, was adequately compensable in damages, land having become a commodity for sale upon being charged. The balance of convenience favoured the Defendant, as arrears were growing and could outstrip the property's value. The application was dismissed entirely with costs to the Defendant, the interim injunction of 31st July 2017 was discharged, and the parties were directed to comply with Order 11 and fix the main suit for pre-trial and hearing.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with probability of success

Holding

He did not; the Bank Statement showed he defaulted almost immediately after disbursement, and the statutory notice under Section 90(1) of the Land Act was served by registered post, so the Defendant's power of sale had crystallised.

Reasoning

The Plaintiff claimed he paid instalments up to April 2017 without fail, but the Bank Statement showed only July 2016 was paid at the agreed instalment. Demand letters, a statutory notice dated 11th November 2016, and a 45-day redemption notice were sent by registered post to his last known address, with a certificate of posting annexed. His denial of service was therefore rejected and the Respondent complied with due process.

p. 5
02

Whether the Plaintiff would suffer irreparable loss not compensable by damages

Holding

He would not; the property was voluntarily offered as security and had been valued, so damages would adequately compensate him.

Reasoning

Having voluntarily charged the property, it became a commodity for sale upon default, and romanticism over the land is unhelpful. A valuation report dated 23rd February 2017 quantified the property, so if the Plaintiff succeeds at trial he can adequately be compensated by an award of damages. No injunction should issue where damages are an adequate remedy.

p. 6
03

Where the balance of convenience lies

Holding

It tilts in favour of the Defendant/Respondent because the Plaintiff is in default and the debt may outstrip the value of the charged property.

Reasoning

The loan arrears keep rising while the Plaintiff has made no offer to repay; restraining the sale would expose the Defendant to potentially substantial irrecoverable loss and erode the sanctity of lawful commercial transactions.

p. 6

Legal principles established

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  • A chargor who defaults under a charge and has been duly served with a statutory notice under Section 90(1) of the Land Act cannot obtain an interlocutory injunction without offering a proposal on how to repay the loan, as the chargee's statutory power of sale under Section 96(1) has crystallised.
  • Once land is offered as security for a loan it becomes a commodity for sale, and the chargor cannot claim irreparable loss upon its sale in default.
  • An injunction being an equitable remedy cannot be granted to a party whose conduct shows him undeserving of equitable relief.

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 18th July 2017 is dismissed entirely with costs to the Defendant/Respondent
  2. 2.The injunctive orders issued on 31st July 2017 are discharged forthwith
  3. 3.The parties to comply with Order 11 of the Civil Procedure Rules within the next 30 days from the date hereof and thereafter take a date for Pre-trial Conference before the Deputy Registrar and set down the main suit for hearing expeditiously

Authorities

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Legislation

  • Land ActSection 90(1)
  • Land ActSection 96(1)
  • Civil Procedure RulesOrder 11

Cases cited (10)

  • Mureithi…Vs…City Council of Nairobi
    (1979) eKLR
  • American Cynamid…Vs. Ethicon Ltd
    (1975) AC 396
  • David Kamau Gakuru…Vs…National Industrial Credit Bank Ltd
    Civil Appeal No.84 of 2001
  • Airland Tours and Travel Ltd…Vs…National Industrial Credit Bank
    Milimani HCCC No.1234 of 2003
  • Mrao Ltd…Vs…First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Habib Bank Attorney General Zurich…Vs…Eugene Marion Yakub
    Civil Appeal No.43 of 1982
  • Jopa Villas LLC…Vs…Private Investiment Corp & 2 Others
    Machakos HCCC No.215 of 2008
  • Isaack O. Litali…Vs…Ambrose W, Subai & 2 others
    HCCC No.2092 of 2000
  • Wairimu Mureithi..Vs...City Council of Nairobi
    Civil Appeal No.5 of 1979 (1981) KLR 322
  • Andrew M. Wanjohi…Vs…Equity Building Society & 7 Others
Jurisdiction invoked
Original civil jurisdiction over the plaintiff's suit and interlocutory application (provision not stated in the judgment)

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, "George Muritu Gathecha v Family Bank Limited [2017] KEELC 688 (KLR)", Case Analysis (2017). Notice of Motion dated 18th July 2017 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/688/eng@2017-12-20

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