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ELCAllowedKitale ELR Case (application dated 8/5/2017)· [2017] KEELC 1346 (KLR)

Mary Nyambura Maina v Kenya Commercial Bank Ltd & another [2017] KEELC 1346 (KLR)

Environment and Land Court
28 September 2017
MNMwangi Njoroge
1,355 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped a bank from auctioning a borrower's land because the bank could not prove it properly served the required legal notices.

What this practically means

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Executive summary

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The plaintiff applied by notice of motion dated 8 May 2017 for a temporary injunction to restrain the defendants from selling by public auction or otherwise interfering with land known as Kitale Municipality Block 15/Koitogos/879, charged to the 1st defendant under a mortgage facility of Kshs 6,300,000 advanced on 7 July 2014. She alleged that she defaulted from March 2016 after a theft crippled her business, that she was never notified of any default, and that the statutory notice, proclamation and redemption notices required by law were never served on her. The defendants opposed, asserting that the plaintiff was in persistent arrears, that statutory notices dated 22 June 2016 and 15 November 2016 issued under sections 90 and 92 of the Land Act were posted, and that a 45-day redemption notice and notification of sale dated 2 March 2017 were personally served by a process server. The court identified the central issues as whether the statutory power of sale had crystallized before advertisement and, crucially, whether service of the statutory documents was effected. Examining the certificates of posting, lists of posted items and the process server's affidavit of service, the court found it could not be stated with certainty that the plaintiff was served with the three crucial documents. Acknowledging the plaintiff's admitted indebtedness but applying the Giella v Cassman Brown principles, the court held that the balance of convenience favoured preservation of the property, since a completed sale would cause the plaintiff great loss if service were later found defective. The court granted a temporary injunction restraining the defendants from selling or dealing with the suit property pending the hearing and determination of the suit, allowed the application in terms of prayer 3, and ordered costs of the application to be in the cause. Judgment delivered at Kitale on 28 September 2017.

Key legal issues

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01

Service of statutory notices under sections 90 and 92 of the Land Act

Holding

The defendants failed to demonstrate with certainty at the interlocutory stage that the statutory notice, 45-day redemption notice and notification of sale were served on the plaintiff personally.

Reasoning

The court examined the certificates of posting, lists of posted items and the process server's affidavit. The certificates merely showed that articles were posted, the redemption notice was received by a person not party to the suit, and the process server's affidavit did not assert that the plaintiff herself was served with the two documents.

p. 2
02

Grant of temporary injunction

Holding

On the balance of convenience the court preserved the suit property by issuing a temporary injunction pending the hearing and determination of the suit.

Reasoning

Applying the Giella v Cassman Brown principles, the court found that if the sale proceeded and it later emerged that service had not been effected as required by law, the plaintiff would suffer great loss that could not be undone. Preservation of the subject matter was therefore the safer course.

p. 3

Legal principles established

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  • Where service of statutory notices under the Land Act is disputed, the court at interlocutory stage can only examine the affidavits and annexures to determine whether the applicant passes the Giella test; if service is not shown with certainty, the balance of convenience favours preserving the property pending trial.

Court orders

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  1. 1.Order of temporary injunction restraining the defendants or their agents from selling or in any way dealing or interfering with the suit property pending the hearing and determination of the suit
  2. 2.Grant of the plaintiff's application dated 8th May 2017 in terms of prayer 3 thereof
  3. 3.Costs of the application in the cause

Authorities

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Legislation

  • Land ActSection 90(1)(2)(3)
  • Land ActSection 92(2)

Cases cited (1)

  • Giella -vs- Cassman Brown & Co. Ltd
    [1973] EA 358
Jurisdiction invoked
Original civil jurisdiction over land disputes (temporary injunction application under the Land Act, sections 90 and 92)

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, "Mary Nyambura Maina v Kenya Commercial Bank Ltd & another [2017] KEELC 1346 (KLR)", Case Analysis (2017). Kitale ELR Case (application dated 8/5/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1346/eng@2017-09-28

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