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ELCPartially AllowedNot stated in the judgment (Environment and Land Court, Nakuru)· [2017] KEELC 1669 (KLR)

Kenya Farmers Association Ltd v Barlclays Bank of Kenya Ltd & another [2017] KEELC 1669 (KLR)

Environment and Land Court
27 September 2017
4,365 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Nakuru court blocked KCB from auctioning land worth billions until it proves how a Kshs. 77 million loan grew to Kshs. 2.2 billion.

What this practically means

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Executive summary

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The plaintiff, formerly Kenya Grain Growers Cooperative Union Limited, charged land parcel Nakuru Municipality Block 9/33 to the 1st respondent bank by a charge dated 17 January 1996 to secure a loan and guarantee of Kshs. 77.2 million. After selling two other charged properties and paying the bank Kshs. 272.4 million, the plaintiff was in May 2015 confronted with a demand of over Kshs. 2.2 billion and an intention to auction the suit property. It sought injunctions and declarations that the charge was defective, the debt fully paid, and the claim unconscionable, invoking among other things Section 44A of the Banking Act (the in duplum rule) and defects in the statutory notices. The 1st respondent asserted the power of sale arose before the Land Act, 2012, that all notices were issued, and that the applicant had admitted substantial indebtedness. Applying Giella v Cassman Brown, the court framed four issues. It held the Land Act, 2012 could not govern the form of a 1995 charge, but a triable issue existed on attestation. It found a legitimate question whether the loan had been fully repaid, given the unexplained escalation to Kshs. 2.2 billion despite significant payments. It found no proof that the statutory notice of 3 October 2007 was served on the correct address or dispatched at all, so prima facie no valid statutory notice was issued. The court issued an injunction restraining the sale until the suit is heard and determined, with costs of the application to the applicant. The limitation and other issues were left for the full hearing.

Key legal issues

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01

Validity of the charge instrument under the Land Act, 2012 and the Registered Land Act

Holding

The Land Act, 2012 cannot govern the form of a charge executed in 1995; however, a triable issue exists on whether the charge was properly attested under Section 110 of the Registered Land Act

Reasoning

The court held it was futile to demand conformity with the Land Act, 2012 for a charge executed in 1995 before that statute existed. The applicable law on form was the Registered Land Act. On attestation, the copies annexed did not clearly show who attested the charge and whether that person was qualified to do so; the applicant had raised doubt sufficient to constitute an issue to be tried, to be resolved when the original document is availed.

p. 5
02

Whether the applicant has fully repaid the loan

Holding

A legitimate question to be tried exists as to whether the applicant has fully paid its loan; it is unclear how a Kshs. 77.2 million loan ballooned to over Kshs. 2.2 billion

Reasoning

The court examined the bank's statements and found the escalation from Kshs. 77.2 million to Kshs. 2,203,291,403.50 despite significant payments required explanation at full hearing. The in duplum rule could be argued, but there was so much doubt about what was properly owed that it would be unfair to allow sale of the suit property before that determination.

p. 5
03

Whether the requisite statutory notices were issued and served

Holding

The applicant made out a prima facie case that no statutory notice was issued; the statutory notice dated 3 October 2007 was addressed to a wrong address and there was no proof of dispatch

Reasoning

The notice of 3 October 2007 bore P.O Box 7236-20100, an address the applicant denied and which differed from the P.O Box 35 Nakuru in the charge instrument and all other correspondence. No certificate of postage proved dispatch. Since the power of sale cannot arise until a statutory notice is served, the bank must prove proper service at the hearing.

p. 6
04

Whether the claim is time barred

Holding

The court declined to determine the limitation issue as the applicant had already established a prima facie case on other grounds

Reasoning

Having found a prima facie case with a probability of success based on doubts about service of the statutory notice and the actual debt owed, the judge found it unnecessary to address whether the debt was time barred or other issues raised by the parties.

p. 6

Legal principles established

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  • The power of sale by a chargee cannot arise until a statutory notice is served upon the chargor
  • Where it is doubtful whether any money is owing at all on a charge, an injunction ought to issue to restrain sale
  • A statute cannot be applied to require conformity of an instrument executed before its enactment

Court orders

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  1. 1.Order of injunction restraining the respondents from offering the suit property for sale in exercise of the statutory power of sale until this suit is heard and determined
  2. 2.The applicant to have the costs of the application

Authorities

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Legislation

  • Registered Land Act (repealed)Sections 65, 74, 110(1)
  • Land Registration ActAct No. 3 of 2012
  • Land ActSections 80(3), 90(2)(d), 96(2), 96(3), 97
  • Banking ActSection 44A
  • Limitation of Actions ActSection 19(1)(2) and (4)
  • Evidence ActSection 23(1)
  • Auctioneers RulesNotification of Sale

Cases cited (1)

  • Giella vs Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel Nakuru Municipality Block 9/33

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, "Kenya Farmers Association Ltd v Barlclays Bank of Kenya Ltd & another [2017] KEELC 1669 (KLR)", Case Analysis (2017). Not stated in the judgment (Environment and Land Court, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1669/eng@2017-09-27

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