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ELCDismissedNotice of Motion dated 27th March, 2017 (ruling delivered 3rd November, 2017)· [2017] KEELC 928 (KLR)

Air Travel & Related Studies Limited v Equity Bank (Kenya) Limited [2017] KEELC 928 (KLR)

High Court of Kenya
3 November 2017
5,181 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's High Court ruled the 2016 banking interest-rate caps do not apply to older loans, allowing the bank to proceed with selling charged property.

What this practically means

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Executive summary

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This ruling by the High Court at Nairobi (S. Okong'o, J) determined the plaintiff's Notice of Motion dated 27th March 2017 seeking, principally, a temporary injunction restraining the defendant chargee from selling or alienating two charged properties (L.R. Nos. 11916/18 and 11916/19), an order prohibiting adverse listing with the Credit Reference Bureau, extension of time to redeem the charge, a stay pending Judicial Review No. 67 of 2007, and disclosure of loan documents. The plaintiff, operator of a college on the suit properties, borrowed Kshs. 194,546,000/- under a 2015 letter of offer and charge, and fell into default. It contended the sum demanded (about Kshs. 197,912,287.45) was overstated due to illegal interest above the caps in the Banking (Amendment) Act, 2016, relying on an IRAC report showing an overcharge of Kshs. 1,208,229.78, and that the statutory notices under sections 90 and 96 of the Land Act were premature and defective. The defendant maintained the charge was valid, notices were properly served, the interest caps were not retrospective, and a dispute over quantum does not restrain a power of sale. The court held the Banking Act affects substantive rights and is not retrospective; parties are bound by their contract; a mere quantum dispute cannot ground an injunction against sale; the plaintiff was properly served (having admitted notices in its plaint); and no malice attended the CRB notification. The application was dismissed with costs to the defendant.

Key legal issues

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01

Retrospectivity of the Banking (Amendment) Act, 2016 interest caps

Holding

The Act does not apply retrospectively to loan agreements concluded before its commencement on 14th September, 2016

Reasoning

Applying the rule in Municipality of Mombasa v Nyali, legislation affecting substantive rights is not construed retrospectively unless a clear intention is manifested. The Banking Act affects substantive rights of lenders and borrowers and contains no express retrospective provision, so it does not govern the 2015 loan agreement.

p. 6
02

Dispute over loan quantum as a ground for injunction against sale

Holding

A mere dispute over the amount payable, without more, does not justify restraining a chargee's statutory power of sale

Reasoning

Relying on Priscillah Krobought Grant and the authorities therein, the court held that no evidence showed interest levied above the agreed rate; the IRAC report was premised on the incorrect assumption that the Banking Act was retrospective and therefore of no assistance.

p. 7
03

Validity and service of statutory notices under the Land Act, 2012

Holding

The plaintiff was duly served with all notices required under sections 90 and 96; any defect in the September 2016 notice was cured by the proper 3-month notice of 6th April, 2016

Reasoning

The notice was sent to the plaintiff's address for service in the charge instrument, was referenced in later letters whose receipt was acknowledged, and the plaintiff admitted receipt of notices in paragraphs 14 and 15 of the plaint, being bound by its pleadings.

p. 7
04

Injunction principles on the Giella v Cassman Brown test

Holding

The plaintiff failed to meet the threshold of a prima facie case with probability of success and irreparable injury

Reasoning

The court applied Giella v Cassman Brown and Nguruman Limited, holding the burden lay on the plaintiff to show a clear and unmistakable right directly threatened; the material before the court did not meet that standard on a balance of probability.

p. 5

Legal principles established

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  • The Banking (Amendment) Act, 2016 affects substantive rights and is not retrospective absent express legislative intention
  • A court cannot re-write a contract between parties; they are bound by its terms unless coercion, fraud or undue influence are pleaded and proved
  • A court does not normally grant an injunction to restrain a chargee's statutory power of sale solely on the ground of a dispute as to the amount due
  • An interlocutory injunction must bear some relationship with the cause of action pleaded in the plaint; parties are bound by their pleadings

Court orders

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  1. 1.The Notice of Motion application dated 27th March, 2017 is dismissed
  2. 2.Costs of the application awarded to the defendant

Authorities

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Legislation

  • Land Actsection 96(2), 96(3), 90(2)(b)
  • Banking (Amendment) Act, 2016section 33B(1)(a) and (b), 33B(2)

Cases cited (11)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • David Gitome Kuhiguka –vs- Equity Bank Ltd
    (2013) eKLR
  • Albert Mario Cordeiro and Another vs. Vishram Shamji
    (2015) eKLR
  • Middle East Bank Kenya Limited vs. Milligan Properties Ltd
    Civil Appeal No. 251 of 1998
  • Municipality of Mombasa vs. Nyali Limited
    [1963] E.A 371
  • National Bank of Kenya Ltd vs. Pipeplastic Samkolit & another
    (2001) KLR 112
  • Priscillah Krobought Grant vs. Kenya Commercial Finance Co. Ltd. and 2 Others
    Civil Application No. Nai 227 of 1995 (108/95 V.R) (unreported)
  • Barmal Kanji Shah & Another Vs. Shah Depar Devji
    (1965) E.A. 91
  • Uhuru Highways Development Ltd. Vs. Central Bank Kenya and 2 Others
    Civil Application No. Nai 140 of 1995 (unreported)
  • Shah vs. Shah
    [1981] KLR 374
Jurisdiction invoked
Inherent jurisdiction of the High Court over interlocutory applications in a civil suit (contract and land claims); not expressly stated in the judgment.

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, "Air Travel & Related Studies Limited v Equity Bank (Kenya) Limited [2017] KEELC 928 (KLR)", Case Analysis (2017). Notice of Motion dated 27th March, 2017 (ruling delivered 3rd November, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/928/eng@2017-11-03

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