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ELCDismissedNot stated in judgment (Eldoret ELC Notice of Motion for temporary injunction)· [2017] KEELC 1376 (KLR)

Joseph Kipkorir Cheruiyot & another v Equity Bank (K) Limited & another [2017] KEELC 1376 (KLR)

Environment and Land Court
27 September 2017
2,488 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop a bank from selling charged land because the borrowers proved no strong case, no irreparable harm, and delayed too long as debt grew.

What this practically means

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Executive summary

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The plaintiffs, by Notice of Motion, sought a temporary injunction restraining the 1st defendant bank and the 2nd defendant auctioneer from selling two charged properties, title No. MOSOP/NYARU/252 (the 1st plaintiff's matrimonial home) and ELDORET MUNICIPALITY BLOCK 15/1854, pending hearing of the suit. They alleged the bank clogged their equity of redemption by selling their prime movers and trailer without crediting the proceeds, withholding information, and failing to comply with section 90 of the Land Act, 2012, and that a sale at throwaway prices would cause irreparable loss. The defendants countered that the 2nd plaintiff was indebted in Kshs.6,624,952.49 as at 7th July 2015, that statutory notices (three months' demand notice of 18.9.2013, statutory notice of sale of 19.3.2014 and redemption notice of 17.4.2015) were duly issued, that spousal consent to the charges was obtained, and that the vehicle sales related to a second facility secured by chattels registration. The court found no rebuttal of the outstanding debt, no evidence of clogging, and no breach of the statutory notice requirements. Applying the principles for temporary injunctions, it held the plaintiffs failed to establish a prima facie case, could not show irreparable loss (the defendant being a financial institution capable of paying damages, and a charged property being a commodity for sale), and that the balance of convenience favoured the defendant as the growing debt might outstrip the securities' value. The application was dismissed with costs.

Key legal issues

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01

Prima facie case

Holding

Plaintiffs failed to establish a prima facie case because the defendant followed due process and the loan was admittedly outstanding

Reasoning

The court found the statutory notices were issued: three months' demand notice on 18.9.2013, statutory notice under section 90 of the Land Act on 19.3.2014, and redemption notice on 17.4.2015, all to the correct address. There was no evidence of clogging of the equity of redemption, as the motor vehicles were sold pursuant to the second loan. The plaintiffs did not rebut the alleged outstanding sum of Kshs.6,624,952.49.

p. 4
02

Irreparable loss

Holding

No irreparable loss shown; a bank is capable of compensating in damages and a charged property is a commodity for sale

Reasoning

The court held that damages would be an adequate remedy given the defendant's financial capacity, and that charging property converts it into a commodity for sale. The existence of a prima facie case alone would not suffice even if established.

p. 4
03

Balance of convenience

Holding

Balance of convenience tilted against granting the injunction because the outstanding debt was growing and could outstrip the securities' value

Reasoning

Applying the comparative inconvenience test, the court found that withholding the injunction would inconvenience the plaintiffs less than stopping the sale would prejudice the defendant, whose debt continues to accrue interest and may exceed the value of the suit properties.

p. 5
04

Clogging the equity of redemption

Holding

No clogging established; sale of motor vehicles related to the second loan, not the charged properties

Reasoning

The plaintiffs alleged the defendant shifted goal posts and paralysed their redemption efforts by seizing and selling prime movers and retaining trailer sale proceeds. The court found the vehicle sales related to the second facility secured by chattels registration, not an interference with the equity of redemption over the land.

p. 4

Legal principles established

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  • A temporary injunction requires the plaintiff to establish a prima facie case with a probability of success; the burden is on the plaintiff.
  • Irreparable injury is injury that cannot be adequately compensated in damages.
  • Once property is charged, it becomes a commodity for sale and the chargor cannot claim irreparable loss from an intended sale.

Court orders

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  1. 1.The Notice of Motion seeking a temporary injunction is dismissed
  2. 2.Costs of the application awarded to the 1st and 2nd defendants
Jurisdiction invoked
Not expressly stated; first-instance injunctive relief under civil procedure and 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, "Joseph Kipkorir Cheruiyot & another v Equity Bank (K) Limited & another [2017] KEELC 1376 (KLR)", Case Analysis (2017). Not stated in judgment (Eldoret ELC Notice of Motion for temporary injunction). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1376/eng@2017-09-27

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