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ELCAllowed· [2017] KEELC 1713 (KLR)

Patricia Achieng Onyango & another (suing as the legal rep. of Dismas Juma Onyango Kamb) v Meridien Biao Bank Limited (In Liquidation) [2017] KEELC 1713 (KLR)

Environment and Land Court
7 September 2017
3,159 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked the auction of a family home because the bank's statutory notice was defective and improperly served on a deceased person.

What this practically means

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Executive summary

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The plaintiff, widow and legal administrator of the estate of Dismas Juma Onyango, moved the court by Notice of Motion dated 4th September 2015 under Order 40 and Order 51 of the Civil Procedure Rules, seeking an interlocutory injunction to restrain the respondent from selling, transferring or encumbering L.R Number Nairobi/Block 103/163, Mugoya Estate, South C, her matrimonial home, which had been advertised for auction on 30th September 2015. She contended that the deceased had in 1995 temporarily guaranteed facilities advanced to Sunwise Travel (K) Ltd under a tripartite agreement; that the third party later substituted securities which the respondent failed to perfect; and that the respondent instead demanded Kshs. 49,562,457/45 and issued a defective redemption notice. The respondent asserted a registered charge of 23rd February 1995, a default, statutory notices of 2012 and 2015, and the chargor's failure to remedy the default. The court framed two issues: validity of the statutory notice and whether the equity of redemption was clogged. It found the 2012 statutory notice defective, having been served on a chargor who died in 2006, and noted the applicant only received a 45-day auctioneer's notice. Relying on David Ngugi Ngaari and Albert Mario Cordeiro, it held that sale without proper notice would clog the equity of redemption, found a prima facie case, held the matrimonial home would suffer irreparable loss not compensable in damages, and found the balance of convenience favoured preserving the status quo. The application was allowed entirely with costs in the cause.

Key legal issues

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01

Validity of the statutory notice under section 90 of the Land Act, 2012

Holding

The statutory notice was defective: it was purportedly served in 2012 on a chargor who died in 2006, and the applicant only received a 45-day auctioneer's notice, contrary to the statutory minimums.

Reasoning

Section 90(1) requires written notice with the chargor given at least one month plus two months to comply, and section 96(2) requires a 40-day notice to sell before completing any sale contract. The defendant's own affidavit showed the deceased died in 2006, six years before the 2012 notice, and the applicant was unaware of it until 2015. Relying on David Ngugi Ngaari v KCB, the court found the notice did not comply with section 90(1) and was defective.

p. 5
02

Prima facie case and clogging of the equity of redemption

Holding

The plaintiff established a prima facie case with a probability of success; allegations of fraud and tripartite agreement breaches are matters for trial, and sale without proper notice would clog the equity of redemption.

Reasoning

The applicant contended the deceased's title was offered temporarily under a tripartite agreement and should have been discharged when the third party substituted securities, which the respondent failed to do. The court held that fraud and third-party agreement issues are best suited for trial, and that a sale carried through absent a proper notice to sell would amount to a clog on the chargor's equity of redemption, so the threshold in Giella v Cassman Brown was met.

p. 5
03

Irreparable harm and balance of convenience

Holding

The suit property is the applicant's matrimonial home; its sale before trial would cause irreparable loss not compensable in damages, and the balance of convenience favours maintaining the status quo.

Reasoning

Following Notco (Mombasa) Limited v Halima Bakari Ramadhani, a long-standing family home carries sentimental value that money cannot replace. Since the applicant resides in the property with her children, sale before determination of the disputed issues would render any eventual remedy hollow; hence preservation by maintaining the status quo preceding the threatened realization of security was appropriate.

p. 5

Legal principles established

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  • A statutory notice served on a chargor who was already deceased, with notice periods shorter than the statutory minimum, is defective and cannot ground a sale of the charged property.
  • Sale of charged property without a proper notice to sell amounts to a clog on the chargor's equity of redemption.
  • A matrimonial home has a value beyond economic measurement and its sale before trial would cause irreparable loss not compensable in damages.

Court orders

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  1. 1.Notice of Motion dated 4th September 2015 allowed entirely with costs in the cause
  2. 2.Interlocutory injunction restraining the Respondent from selling, transferring, disposing, wasting, alienating or encumbering L.R Number Nairobi/Block 103/163, Mugoya Estate, South C, pending hearing and determination of the suit
  3. 3.Maintenance of status quo prevailing before the Defendant threatened to realize the security
  4. 4.Plaintiff directed to take out Summons and serve them upon the Defendant, which to enter appearance and file its Defence
  5. 5.Parties to comply with Order 11 of the Civil Procedure Act to prepare the suit for hearing

Authorities

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Legislation

  • Civil Procedure ActSections 3A and 63(c)
  • Environment and Land Court ActSection 13
  • Civil Procedure RulesOrder 51 Rule 1; Order 40 Rules 1, 2, 3, 4 and 8; Order 11
  • Land Act, 2012Sections 90(1), 90(3) and 96(2)
  • Auctioneers Act / Auctioneers RulesRule 15

Cases cited (12)

  • Marco Producton Limited vs Pagola
  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Simon Gatutu Kimamo & 587 Others vs East Africa Portland Cement Co. Ltd
  • Suleiman vs Amboseli Resort Ltd
    (2004) eKLR 589
  • Moses Kibiego vs Ecobank Kenya Limited
    (2014) eKLR
  • Elizabeth Wambui vs Housing Finance Co. Ltd
    (2006) eKLR
  • Mrao Limited vs First American Bank of Kenya Limited & 2 others
    (2003) KLR 125
  • Kenya Commercial Finance Co. Ltd vs Afraha Education Society
    (2001) EA 86
  • American Cynamid vs Ethicon Ltd
    1975 ALLER 504
  • David Ngugi Ngaari vs Kenya Commercial Bank Limited
    [2015] eKLR
  • Albert Mario Cordeiro & another vs Vishram Shamji
    [2015] eKLR
  • Notco (Mombasa) Limited & Another vs Halima Bakari Ramadhani
    Civil Appeal No. 158 of 1992
Jurisdiction invoked
Sections 3A and 63(c) of the Civil Procedure Act, Cap 21 and Section 13 of the Environment and Land Court Act, Cap 12A; Order 51 Rule 1 and Order 40 Rules 1, 2, 3, 4 and 8

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Patricia Achieng Onyango & another (suing as the legal rep. of Dismas Juma Onyango Kamb) v Meridien Biao Bank Limited (In Liquidation) [2017] KEELC 1713 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1713/eng@2017-09-07

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