Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 30/8/2016, Busia)· [2017] KEELC 2246 (KLR)

Amisi Onyango Mukoya v National Bank of Kenya Ltd [2017] KEELC 2246 (KLR)

High Court of Kenya
19 July 2017
1,464 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

#

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

#
The Applicant, Amisi Onyango Mukoya, moved the High Court at Busia by Notice of Motion dated 30/8/2016 under Section 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking a temporary injunction to restrain the National Bank of Kenya from auctioning or alienating land parcel SOUTH TESO/ANGOROMO/2299, offered as security for a loan. He alleged the loan of Kshs.30,000 had been repaid, that interest rates were unilaterally increased, that no statutory notice of sale was served, and that the claim was time-barred. The bank countered that larger loans of Kshs.200,000 and 300,000 were advanced against several charged properties, that the Applicant defaulted, and that statutory notices were served at the address he provided; it also accused him of lacking clean hands. The court confined itself to two interlocutory issues: service of the statutory notice for parcel 2299 and the clean-hands allegation. It found that none of the three statutory notices annexed by the bank referred to parcel 2299 - they related to parcels 2538 and 2900 - while the auctioneer's notice of sale concerned parcel 2299, which the statutory notice should have preceded and matched. The clean-hands allegations were unsubstantiated and did not amount to deceitful conduct. Issues of limitation and disputed interest were reserved for the trial, following Mbuthia v Jimba Credit Finance Corporation. The application was allowed in terms of prayer 3, with costs in the cause.

Key legal issues

#
01

Service of statutory notice for the charged parcel

Holding

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

Reasoning

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.

p. 2
02

Clean hands doctrine

Holding

Allegations that the Applicant made unfulfilled payment promises and ignored notices remained unsubstantiated and did not sully his hands

Reasoning

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.

p. 2
03

Scope of interlocutory determination

Holding

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

Reasoning

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.

p. 3

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. 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. 2.Costs of the application to be in the cause

Authorities

#

Legislation

  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2, 6 and 7
  • Statute of Limitation of Actions ActNot specified

Cases cited (5)

  • GIELA vs CASSMAN BROWN & CO. LTD
    [1973] EA 358
  • MRAO vs FIRST AMERICAN BANK & 2 OTHERS
    [2003] KLR 125
  • SAMSON ALITON OKELLO vs BARCLAYS BANK
    [2009] eKLR
  • FRANCIS J. K. ICHATHA vs HFCK
    CA No. 108 of 2005
  • MBUTHIA vs JIMBA CREDIT FINANCE CORPORATION & ANOTHER
    [1988] KLRI
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.