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ELCDismissedCivil Suit No. 8 of 2017 (O.S.)· [2017] KEELC 1121 (KLR)

Selian Holdings Company Limited v NIC Bank Limited (Environment & Land Case 445 of 2017) [2017] KEELC 1121 (KLR)

Environment and Land Court
10 November 2017
3,514 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to stop Jamii Bora Bank from selling land securing a defaulted Kshs.101 million loan because the bank followed the law.

What this practically means

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Executive summary

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This was an interlocutory Notice of Motion dated 13th April 2017 by the Plaintiff/Applicant, a company that had borrowed Kshs.101,000,000/= from the Defendant Bank on 27th November 2014, secured by a charge over three parcels of land being LR.No.21096/87, 88 and 89 in Juja, Kiambu, to finance construction of a nine-storeyed three-star hotel. The Applicant sought a temporary injunction restraining the Defendant from interfering with its quiet possession of the charged properties or exercising its statutory power of sale, contending that the project stalled after the County Government of Kiambu refused a partial occupation permit, that the Bank refused to refinance or restructure, and that a 40-day notice to sell issued on 16th December 2016 was issued in breach of an agreement at a meeting of 25th November 2016 to withhold further notices. The Defendant, through its Senior Manager Legal Services, opposed the application, asserting that the Plaintiff defaulted, that statutory notices under Sections 90 and 96 of the Land Act were validly issued, and that the Plaintiff failed to pay arrears or make acceptable payment proposals. Applying the Giella v Cassman Brown principles as restated in Mrao v First American Bank, the Court held that the Applicant had not established a prima facie case with probability of success because it was in default and the notices were lawfully issued; that no irreparable loss not compensable in damages was shown, since a chargor who offers property as security knows it may be sold on default and Section 99(4) of the Land Act provides a damages remedy; and declined to decide the balance of convenience. The application was dismissed entirely with costs to the Defendant.

Key legal issues

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01

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

Holding

No. The Applicant defaulted on the loan, the statutory notices under Sections 90(1) and 96(2) of the Land Act were validly issued, and the Applicant's rights were not infringed.

Reasoning

The Court found the Plaintiff took a loan of Kshs.101,000,000/= secured by a charge over the suit properties and defaulted in repayment. A 90-day statutory notice was issued on 7th September 2016 and, the arrears remaining unpaid, a 40-day notice to sell followed on 16th December 2016. The meeting of 25th November 2016 did not legally prevent the statutory notices from running because the Plaintiff neither paid the arrears nor made an acceptable payment proposal. The Defendant therefore acted within its statutory rights and the Applicant failed to show any infringement of its rights.

p. 5
02

Whether the Applicant would suffer irreparable loss not compensable by damages

Holding

No. The charged properties were willingly offered as security and became commodities for sale upon default, and Section 99(4) of the Land Act provides a remedy in damages for unauthorized, improper or irregular exercise of the power of sale.

Reasoning

The Court reasoned that the Applicant knew when it charged the three parcels of land that they could be sold on default. The Defendant's remedy of sale is provided by Section 90(3) of the Land Act, and any prejudice from an unauthorized or irregular exercise of the power of sale is compensable in damages under Section 99(4). Relying on Moses Nganye Kahindo v Agricultural Finance Corporation, the Court held it does not lie in the mouth of a chargor to claim irreparable injury where the lender realizes the security.

p. 6
03

Whether the balance of convenience favoured the grant of the injunction

Holding

The Court declined to decide the balance of convenience, having found against the Applicant on the first two limbs.

Reasoning

Having found that the Applicant failed to establish a prima facie case and failed to demonstrate irreparable injury not compensable by damages, the Court found itself not in doubt and therefore did not determine the third Giella limb of balance of convenience.

p. 6

Legal principles established

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  • Where a chargee has validly served statutory notices under Sections 90 and 96 of the Land Act following a chargor's default, an injunction will not issue to restrain exercise of the statutory power of sale
  • A chargor who offers property as security cannot claim irreparable injury not compensable in damages when the lender realizes the security upon default
  • An equitable remedy such as an injunction cannot be granted to a party whose conduct demonstrates it is undeserving of such relief

Court orders

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  1. 1.The Notice of Motion dated 13th April 2017 is dismissed entirely with costs to the Defendant/Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 63(c),(e)
  • Civil Procedure Rules 2010Order 40 Rules 1 and 4; Order 51 Rule 1
  • Land Act, 2012Sections 90(1), 90(3), 90(3)(e), 96(2), 96(2)(3), 99(4) and 103

Cases cited (8)

  • Agip (K) Ltd vs Maheshchandra Himatlal Vora & 2 Others
    Civil Appeal No.213 of 1999
  • Edwin Kamau Muniu vs Barclays Bank of Kenya Ltd
    Nairobi HCCC No. 1118 of 2002
  • Giella vs Cassman Brown & Co. Ltd
    1973 EA 358
  • Francis Jumba Enziano & Others vs Bishop Okeyo & 2 Others
    Nairobi HCCC No.1128 of 2001
  • Mrao vs First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & 3 Others
    (2005) EKLR
  • David Kamau Gakuru vs National Industrial Credit Bank Ltd
    Civil Appeal No.84 of 2001
  • Moses Nganye Kahindo vs Agricultural Finance Corporation
    HCCC No.1044 of 2001
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(c),(e) of the Civil Procedure Act; Order 40 Rules 1 and 4 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Section 103 of the Land Act, 2012

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, "Selian Holdings Company Limited v NIC Bank Limited (Environment & Land Case 445 of 2017) [2017] KEELC 1121 (KLR)", Case Analysis (2017). Civil Suit No. 8 of 2017 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1121/eng@2017-11-10

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