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ELCDismissedNot stated in the judgment· [2017] KEELC 1971 (KLR)

S O Arama v Family Bank Ltd (Environment & Land Case 229 of 2016) [2017] KEELC 1971 (KLR)

High Court of Kenya
27 July 2017
1,051 words in judgment
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The bottom line

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The High Court in Nakuru dismissed a borrower's attempt to block a property sale, ruling that disputing the debt amount alone cannot stop a lender from auctioning charged land.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 27th June 2016 in which the plaintiff sought an interlocutory injunction under Order 40 rules 1 and 2 of the Civil Procedure Rules restraining the defendant from attaching, selling, disposing of or interfering with land parcel NAKURU/MUNICIPALITY/BLOCK 21/889, charged to the defendant to secure a loan taken by the plaintiff and his wife. Following default, the debt escalated to KShs 9,131,052.22 as at 8th June 2016, an auctioneer issued a Notification of Sale for an auction on 12th August 2016, and a 45-day redemption notice was served. The plaintiff argued that no valid statutory notices were served, that section 44 of the Banking Act was not complied with, and that the escalation from KShs 3,000,000 was unexplained. The defendant, through the replying affidavit of Antony Ouma, exhibited statutory notices under section 90 of the Land Act 2012 served by registered post on 30th June 2014 and 30th September 2014, with certificates of postage, and the subsequent notices of sale and redemption. Applying the Giella v Cassman Brown test, the court found service of the notices proved and held that a mere dispute over the amount owing cannot restrain a chargee's power of sale, citing St Elizabeth Academy v Housing Finance. Concluding there was no prima facie case with probability of success, the court did not consider the remaining Giella limbs and dismissed the motion with costs on 27th July 2017.

Key legal issues

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01

Service of statutory notices

Holding

The court found that the statutory notice under section 90 of the Land Act 2012 was served on the chargor by registered post to the address used in the letter of offer and charge document, and that the plaintiff and the chargor were served with notices.

Reasoning

The plaintiff alleged non-service or invalid service, but the defendant's replying affidavit exhibited statutory notices dated 30th June 2014 and 30th September 2014 sent by registered post with certificates of postage, plus a 45-day redemption notice served on 10th June 2016 and notice of sale on 12th August 2016. The court was persuaded service was effected.

p. 2
02

Whether escalation of the debt from KShs 3,000,000 to KShs 9,131,052.22 supports an injunction

Holding

A mere dispute over the amount owing does not justify restraining a mortgagee/chargee from exercising the power of sale.

Reasoning

The plaintiff admitted default due to hard economic times yet challenged the escalation of the debt. Relying on St Elizabeth Academy v Housing Finance and Halsbury's Laws, the court reiterated that a mortgagee will not be restrained because the amount is in dispute, unless the mortgagor pays the claimed amount into court.

p. 2
03

Prima facie case under Giella v Cassman Brown

Holding

The plaintiff failed to establish a prima facie case with probability of success, so the other limbs of the Giella test need not be considered.

Reasoning

Applying the first limb of the Giella test, the court found the notices were served and the debt dispute could not found an injunction. Having failed at the first limb, the court expressly declined to assess the other limbs, which disposes of the application.

p. 2

Legal principles established

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  • A dispute on the amount owing alone cannot be a basis for granting an injunction to restrain a chargee from exercising power of sale.

Court orders

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  1. 1.Notice of Motion dated 27th June 2016 is dismissed with costs

Authorities

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Legislation

  • Banking Actsection 44
  • Land Act 2012section 90
  • Civil Procedure RulesOrder 40 rules 1 and 2

Cases cited (3)

  • Giella vs Cassman Brown
    1973 EA 358
  • St Elizabeth Academy- Karen Limited v Housing Finance Co of Kenya Limited
    [2013] eKLR
  • Scholastica Nyaguthii Muturi vs Housing Finance Co of Kenya Limited
    HCCC No 10 of 2010
Jurisdiction invoked
Not expressly stated; application brought under Order 40 rules 1 and 2 of the Civil Procedure Rules

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, "S O Arama v Family Bank Ltd (Environment & Land Case 229 of 2016) [2017] KEELC 1971 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1971/eng@2017-07-27

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