Joseph Kipkorir Cheruiyot & another v Equity Bank (K) Limited & another [2017] KEELC 1376 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case
Plaintiffs failed to establish a prima facie case because the defendant followed due process and the loan was admittedly outstanding
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.
Irreparable loss
No irreparable loss shown; a bank is capable of compensating in damages and a charged property is a commodity for sale
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.
Balance of convenience
Balance of convenience tilted against granting the injunction because the outstanding debt was growing and could outstrip the securities' value
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.
Clogging the equity of redemption
No clogging established; sale of motor vehicles related to the second loan, not the charged properties
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.
Legal principles established
#- 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
#- 1.The Notice of Motion seeking a temporary injunction is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.