Tachasis Wholesalers Co. Ltd v National Bank of Kenya Ltd [2017] KEELC 2160 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case
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
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.
Irreparable harm
The court found damages would not adequately compensate the plaintiff if the properties were sold in auction before the suit was heard
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.
Legal principles established
#- 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
#- 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
- Jurisdiction invoked
- Original civil jurisdiction (not expressly invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.