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ELCDismissedNot stated in the judgment· [2017] KEELC 2008 (KLR)

Joyce Nancy Kabiru v Faulu Micro-Finance Bank Limited & 2 others [2017] KEELC 2008 (KLR)

Environment and Land Court
16 June 2017
2,145 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Once a bank lawfully auctions your charged land, Kenyan courts will not reverse the sale—you must seek damages instead, so act before the auction.

What this practically means

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Executive summary

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The plaintiff, proprietor of land parcel No. Mwerua/Mukure/1673, moved the court by Notice of Motion dated 2nd November 2016 under Order 40 Rules 1 and 2 of the Civil Procedure Rules seeking a temporary injunction restraining the defendants from transferring, alienating or interfering with the suit land. She charged the land to the 1st defendant to secure a loan of about Ksh. 1,000,000 in February 2014; upon default, statutory notices were issued and the land was sold by public auction on 7th October 2016 to the 3rd defendant for Ksh. 3,000,000, which she alleged was fraudulent, in breach of duty and far below its asserted value of Ksh. 7,500,000. The 1st defendant contended the sale was lawful after due notice and that the plaintiff's equity of redemption was extinguished; the 3rd defendant, a bona fide purchaser who financed the purchase, denied any fraud. Applying Giella v Cassman Brown and Mrao Ltd, and noting that the mortgagee's power of sale is restrained only where the amount claimed is paid into court, the court held that the plaintiff's default and the sum owing were undisputed, that the completed sale had extinguished her equity of redemption, and that any claim of fraud, irregularity or undervalue must await trial. Damages, including under Section 99(4) of the Land Act, would adequately compensate her. The application was dismissed with costs to the 1st and 3rd defendants, and the Ksh. 1,065,092 deposited in court pursuant to an earlier direction was ordered released to the plaintiff forthwith.

Key legal issues

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01

Whether an injunction could issue to restrain a completed statutory power of sale

Holding

No - the sale had already occurred, the equity of redemption was extinguished and the plaintiff's only remedy lies in damages

Reasoning

The court found that by the time it directed the deposit of the outstanding sum, the suit land had already been sold by public auction to the 3rd defendant a month earlier. Once the chargee lawfully exercised the power of sale, the equity of redemption was extinguished. Allegations of fraud, irregularity or undervalue cannot be determined on affidavits at the interlocutory stage and must await trial; the remedy for an improper sale is damages under Section 99(4) of the Land Act.

p. 3
02

Whether the plaintiff established a prima facie case under the Giella principles

Holding

No - the default and the sum due were not in dispute, and damages would adequately compensate her

Reasoning

Applying Giella v Cassman Brown, the plaintiff failed the first limb: her default in repaying the loan and the amount owing were undisputed. Her own valuation placed the land at Ksh. 7,500,000, showing damages would be an adequate remedy, defeating the second limb as well. Her alternative prayer to sell the land privately to settle the loan was rendered academic by the completed sale.

p. 4

Legal principles established

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  • A mortgagee will be restrained from exercising the power of sale only where the mortgagor pays the amount claimed into court, unless the claim is excessive on the terms of the mortgage
  • A person prejudiced by an unauthorized, improper or irregular exercise of the power of sale has a remedy in damages against the person exercising that power

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 2nd November 2016 is dismissed with costs to the 1st and 3rd defendants
  2. 2.The sum of Ksh. 1,065,092.00 deposited by the plaintiff on 17th November 2016 vide receipt No. B 450404 be released to her forthwith
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules (injunctive relief over charged land)

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, "Joyce Nancy Kabiru v Faulu Micro-Finance Bank Limited & 2 others [2017] KEELC 2008 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2008/eng@2017-06-16

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