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ELCDismissedNot stated in the judgment as provided (application dated 11th January, 2016)· [2017] KEELC 1365 (KLR)

Kaab Investments Limited & another v Kenya Commercial Bank Ltd [2017] KEELC 1365 (KLR)

Environment and Land Court
12 May 2017
2,164 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed Chase Bank to proceed with selling defaulted borrowers' land because the borrowers admitted the debt and failed to prove their claims.

What this practically means

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Executive summary

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The Plaintiffs moved the court by application dated 11th January, 2016 seeking interlocutory injunctions restraining Chase Bank (In Receivership), its receivers, servants and Garam Investments Auctioneers from advertising, offering for sale or selling two suit properties in Malindi (Portion Numbers 10801 and 11215) and the plant and machinery thereon, together with orders for discovery of security documents and the appointment of an independent commissioner to investigate the interest rates applied and the market value of the properties. The 1st Plaintiff admitted obtaining credit facilities from the Bank secured by charges over the 2nd Plaintiff's land, and by letter dated 12th July, 2014 admitted owing USD 2,328,377 and Kshs. 29,000,000. The Plaintiffs alleged the Bank reneged on a restructuring agreement, issued a premature 40 days' notice instead of a 90 days' notice, failed to serve all notices on the Plaintiffs and a guarantor, and undervalued the properties. The Bank deponed that default continued, that the 90 days' notices dated 12th June, 2015, the 40 days' notices dated 16th September, 2015 and the 45 days' Notification of Sale were all served as shown by certificates of posting, and that forced sale valuations were obtained. The court held the Plaintiffs failed to prove payment under the rescheduled USD facility, that the notices complied with Sections 90(2) and 96(2) and (3) of the Land Act, and that rival valuation reports did not infringe Section 97(1), damages being the remedy for an undervalue sale. Applying Mrao Ltd v First American Bank, the court found no prima facie case, no irreparable harm, and dismissed the application with costs; discovery was deferred to pre-trial directions.

Key legal issues

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01

Whether a prima facie case was established for an injunction against exercise of statutory power of sale

Holding

No prima facie case with chances of success was established; the Plaintiffs admitted the debt and the charge, so the equitable remedy of injunction was unavailable

Reasoning

The court applied the Mrao Ltd v First American Bank test. The 1st Plaintiff conceded obtaining the money, the charge and further charge were exhibited, and the 1st Plaintiff's own letter of 12th July, 2014 admitted indebtedness of USD 2,328,377 and Kshs. 29,000,000. Having offered the properties as security, the Plaintiffs knew default could lead to sale and could not plead irreparable damage.

p. 4
02

Whether the statutory notices under the Land Act were properly issued and served

Holding

The court was satisfied the 90 days' statutory notices dated 12th June, 2015, the 40 days' notices dated 16th September, 2015 and the 45 days' Notification of Sale were all issued and served, complying with Section 90(2) of the Land Act

Reasoning

Certificates of posting showed service by registered post on both Plaintiffs at their addresses, which the Plaintiffs did not deny. The 45 days' Notification of Sale dated 5th November, 2015 by Garam Investments Auctioneers was served on the registered proprietor per the certificate issued under Section 15(c) of the Auctioneers Rules. The claim that a guarantor was not served did not defeat the application.

p. 4
03

Whether the Defendant's valuation infringed Section 97(1) of the Land Act

Holding

Possession of rival higher valuation reports by the Plaintiffs does not amount to an infringement of Section 97(1); the remedy is damages if the sale price is not the best reasonably obtainable

Reasoning

The Defendant exhibited two valuation reports by Nile Real Appraisers (EA) Ltd giving market and forced sale values for both portions. The mere existence of the Plaintiffs' higher valuations did not show the statutory duty to obtain the best price reasonably obtainable had been breached; that question could be determined at the hearing with a damages remedy.

p. 4
04

Whether the Bank reneged on a promise to restructure the loan

Holding

No; the Bank only rescheduled the USD Term Loans Facility, and the Plaintiffs produced no evidence of paying the rescheduled instalments

Reasoning

The letter of 15th July, 2015 rescheduled the outstanding USD Terms Loans Facility at USD 35,000 monthly for 96 consecutive months, and only that facility. The burden lay on the Plaintiffs to show payment of the suggested amounts after signing; no such evidence was placed before the court, so the allegation of reneging failed.

p. 3

Legal principles established

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  • A borrower who admits obtaining credit facilities and offering land as security, and who has not repaid the debt, cannot claim an injunction to restrain the chargee's statutory power of sale
  • A plaintiff holding higher valuation reports does not thereby establish an infringement of Section 97(1) of the Land Act; the remedy for an undervalue sale lies in damages at the hearing
  • A party alleging that a lender reneged on a rescheduling agreement must adduce evidence that it paid the rescheduled instalments

Court orders

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  1. 1.Dismissal of the Plaintiffs' application dated 11th January, 2016
  2. 2.Costs of the application awarded to the Defendant

Authorities

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Legislation

  • Land ActSection 90(2)
  • Land ActSections 96(2) and (3)
  • Land ActSection 97(1)
  • Auctioneers RulesSection 15(c)

Cases cited (1)

  • Mrao Limited vs. First American Bank of Kenya Ltd & 2 others
    (2003) KLR
Jurisdiction invoked
Not expressly stated; first-instance civil application before the Environment and Land Court concerning land charged as security

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, "Kaab Investments Limited & another v Kenya Commercial Bank Ltd [2017] KEELC 1365 (KLR)", Case Analysis (2017). Not stated in the judgment as provided (application dated 11th January, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1365/eng@2017-05-12

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