Amisi Onyango Mukoya v National Bank of Kenya Ltd [2017] KEELC 2246 (KLR)
The bottom line
#Kenya's High Court blocked a bank from auctioning a borrower's land because the bank couldn't produce the statutory sale notice for that specific parcel.
What this practically means
#Executive summary
#Key legal issues
#Service of statutory notice for the charged parcel
The Respondent failed to avail the statutory notice for parcel No. 2299; the notices annexed related to parcels 2538 and 2900, so injunctive relief was warranted
The Respondent annexed three statutory notices (BM2-a, BM2-b, BM2-c) to its replying affidavit, but none referred to parcel No. 2299 - they referred to parcels 2538 and 2900. Since the auctioneer's notice of sale concerned parcel 2299 and the statutory notice must match its details, the failure to produce the statutory notice for that parcel fatally undermined the Respondent's position on the application.
Clean hands doctrine
Allegations that the Applicant made unfulfilled payment promises and ignored notices remained unsubstantiated and did not sully his hands
The Respondent alleged the Applicant lacked clean hands because of broken promises to pay and ignored notices. No evidence of the promises was availed, and the auctioneer's notice was in fact acted upon as it prompted the filing of the suit. The Respondent had to demonstrate deceitful or willful conduct to gain undeserved mileage, which it failed to do.
Scope of interlocutory determination
Issues of limitation and disputed interest were left for trial since deciding them conclusively at interlocutory stage would determine the suit or leave nothing for trial
The court, citing Mbuthia v Jimba Credit Finance Corporation, declined to make final findings of fact on disputed affidavits. The limitation issue could end the suit yet the court was only asked to dismiss the application, and the interest issue was pleaded and denied, so both were reserved for the trial.
Legal principles established
#- No court will readily endorse a sale by a chargee where the requisite statutory notice is not shown to have been served
- On an interlocutory injunction application the court should not make final findings of fact on disputed affidavits but weigh the relative strengths of each side's propositions
- Unparticularised allegations of broken payment promises do not establish lack of clean hands; the party alleging must show deceitful or willful conduct designed to gain undeserved mileage
Court orders
#- 1.Temporary injunction restraining the Respondent by themselves, agents, workers, employees, servants or assignees from auctioning, selling or alienating L.R. SOUTH TESO/ANGOROMO/2299 pending hearing and determination of the suit
- 2.Costs of the application to be in the cause
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act (Cap 21) and Order 40 Rules 1, 2, 6 and 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amisi Onyango Mukoya v National Bank of Kenya Ltd [2017] KEELC 2246 (KLR)", Case Analysis (2017). Not stated in the judgment (Notice of Motion dated 30/8/2016, Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2246/eng@2017-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.