George Muritu Gathecha v Family Bank Limited [2017] KEELC 688 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with probability of success
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.
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.
Whether the Plaintiff would suffer irreparable loss not compensable by damages
He would not; the property was voluntarily offered as security and had been valued, so damages would adequately compensate him.
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.
Where the balance of convenience lies
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.
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.
Legal principles established
#- 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
#- 1.The Plaintiff's Notice of Motion dated 18th July 2017 is dismissed entirely with costs to the Defendant/Respondent
- 2.The injunctive orders issued on 31st July 2017 are discharged forthwith
- 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
- Jurisdiction invoked
- Original civil jurisdiction over the plaintiff's suit and interlocutory application (provision not stated in the judgment)
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.
- Rose Wangari Ndegwa v Housing Finance Company of Kenya Ltd & 3 others[2026] KEELC 5943 (KLR)25 Sept 2026
- Willow Park Ltd v Jamii Bora Bank & another; Gokul Builders Ltd v Jamii Bora Bank & another; Grace Kabui Kagondu & 6 others v Jamii Bora Bank & another; Gideon Ngaruiya Gathuru & 2 others v Jamii Bora Bank & another (Consolidated)[2019] KEHC 769 (KLR)20 Dec 2019
Cite this brief
#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.