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ELCPartially AllowedNot stated in judgment· [2017] KEELC 2160 (KLR)

Tachasis Wholesalers Co. Ltd v National Bank of Kenya Ltd [2017] KEELC 2160 (KLR)

Environment and Land Court
14 July 2017
1,506 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan bank was blocked from auctioning land because it could not prove it issued the required statutory notices before selling.

What this practically means

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Executive summary

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Tachasis Wholesalers Co. Ltd sued National Bank of Kenya Ltd seeking a permanent injunction restraining the bank from selling or interfering with three Eldoret properties - Eldoret Municipality Blocks 5/46/1, 9/1727 and 20/38 - and seeking an order for supply of documents. The company asserted it never applied for, was never advanced, and never guaranteed any loan, and that no statutory notice under section 90 of the Land Act was issued before the bank served a Notification of Sale. The bank, through a replying affidavit, maintained the outstanding loan stood at Kshs. 42,826,897, that the three parcels were registered in the names of Hassan Kiptoo Koskey and the plaintiff and were charged as securities, and that the plaintiff had admitted receiving a loan in pleadings filed in a lower court. Ombwayo J applied the settled Giella-style tripartite test for interlocutory injunctions, citing the East African Court of Justice decision in Mary Ariviza and Okotch Mondoh v Attorney General of the Republic of Kenya and Secretary General of the East African Community. The court found the bank had failed to produce the loan application, letter of offer and acceptance, or demonstrate compliance with sections 90 and 96 of the Land Act, and did not respond to the allegation that no statutory notice was issued. The plaintiff was held to have established a prima facie case with a likelihood of success, and irreparable harm not compensable in damages; the balance of convenience test did not arise as the court was not in doubt. The application was allowed and a temporary injunction issued restraining the bank from selling or dealing with the suit parcels pending the hearing of the suit.

Key legal issues

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01

Prima facie case

Holding

The plaintiff established a prima facie case because the defendant failed to produce the loan application, letter of offer and acceptance, and did not respond to the allegation that no statutory notice under section 90 of the Land Act was issued

Reasoning

The plaintiff denied ever applying for or receiving a loan from the defendant. The defendant relied only on the existence of registered charges and pleadings from a lower court. The court held it was incumbent on the defendant to attach the loan application and approval; its failure, together with its non-response to the statutory notice allegation, left the plaintiff's denial undisturbed.

p. 3
02

Irreparable harm

Holding

The court found damages would not adequately compensate the plaintiff if the properties were sold in auction before the suit was heard

Reasoning

The court reasoned that the defendant had not established it could compensate the plaintiff by damages if the suit ultimately succeeded after the properties had been auctioned. Having found a prima facie case and irreparable harm, the court held it was not in doubt, so the balance of convenience test did not arise.

p. 3

Legal principles established

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  • A chargee must comply with the statutory notice requirements of sections 90 and 96 of the Land Act before exercising the power of sale, and failure to demonstrate such compliance supports a prima facie case for an injunction

Court orders

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  1. 1.A temporary injunction restraining the defendant, its agents, servants and/or auctioneers from interfering with, selling, disposing of, offering for sale by way of public auction or private treaty, or dealing in any way detrimental to the plaintiff's rights in respect of Eldoret Municipality Block 5/46/1, Eldoret Municipality Block 9/1727 and Eldoret Municipality Block 20/38 pending the hearing of the suit

Authorities

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Legislation

  • Land ActSection 90
  • Land ActSection 96

Cases cited (1)

  • Mary Ariviza and Okotch Mondoh Versus the Attorney General of The Republic of Kenya And the Secretary General of The East African Community
    Application No. 3 Of 2010 (Arising From Reference No. 7 Of 2010)
Jurisdiction invoked
Original civil jurisdiction (not expressly invoked in the judgment)

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, "Tachasis Wholesalers Co. Ltd v National Bank of Kenya Ltd [2017] KEELC 2160 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2160/eng@2017-07-14

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