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ELCDismissedNot stated in judgment· [2017] KEELC 2430 (KLR)

Kiprono Tanui Kiprost v Kenya Commercial Bank Ltd [2017] KEELC 2430 (KLR)

Environment and Land Court
28 June 2017
1,906 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a bank to proceed with selling charged land because the borrower proved the statutory notices were properly served and disputed nothing else.

What this practically means

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Executive summary

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The plaintiff, a joint registered owner of land parcel Lembus/Kiptuim/381, sought a temporary injunction restraining Kenya Commercial Bank Ltd from advertising or selling the property. He had executed a deed of guarantee in 2013 for a loan facility to Glory Chemists Limited and later charged the property as security. He complained that he was never served with the 90 days' statutory notice under Section 90 of the Land Act, 2012, nor the 45 days' redemption notice and notification of sale under the Auctioneers Rules, 1997, and that his equity of redemption would be extinguished if the sale proceeded. He relied on his advanced age of 90 years and the fact that the land was his home. The defendant, through a replying affidavit of its Credit Administrator, asserted that the charge secured Kshs.10,000,000, that statutory notices were sent by registered post to the plaintiff, his co-proprietor and the borrower, and that due process was followed. The court applied the Giella v Cassman Brown test. On the first limb, it found the plaintiff had not established a prima facie case: the register of posted parcels and a certificate of service satisfied the court that notices were duly served, and the plaintiff did not dispute the arrears. On irreparable harm, the court held the claim was compensable in damages and that the plaintiff's age was irrelevant since he knew the consequences of charging his property. On balance of convenience, the court found the debt might outstrip the property's value. The application was dismissed with costs.

Key legal issues

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01

Prima facie case with likelihood of success

Holding

No prima facie case established; the defendant proved it sent the statutory notices as required by law and the plaintiff did not dispute the debt or arrears

Reasoning

The plaintiff guaranteed the loan and did not challenge the outstanding debt; his sole complaint was lack of notice. The court examined the register of posted parcels and found notices were sent by registered mail to the plaintiff and co-proprietor, and correspondence showed the plaintiff was aware of the arrears. Failure to prove defective notice meant the statutory power of sale had arisen and the first Giella test failed.

p. 3
02

Irreparable loss not compensable in damages

Holding

Not demonstrated; the plaintiff's claim was quantifiable in damages

Reasoning

The court held that the plaintiff's alleged harm could be compensated in damages. His reliance on his advanced age of 90 years and the fact that the charged land was his home did not constitute a basis for an injunction because he had knowingly charged the property as security and understood the consequences of default.

p. 3
03

Balance of convenience

Holding

Tilts in favour of the defendant; the debt was likely to outstrip the value of the property

Reasoning

The court found the defendant would suffer more if restrained from realizing its security, since the debt could exceed the property's value while the plaintiff retained the benefit of the loan. The plaintiff could not keep both the money and the property; he had to either repay the loan or lose the land through due process.

p. 3
04

Proof of service of statutory and redemption notices

Holding

Service was proved by the register of posted parcels and the certificate of service sworn before an advocate

Reasoning

The court scrutinized the list of registered postal parcels posted on 10.2.2015 showing parcels addressed to the plaintiff and David Tanui, and the certificate of service sworn before Nancy Njoroge, Advocate and Commissioner for Oaths, which the court found satisfied the evidential threshold for proof of service despite not being an affidavit of service.

p. 3

Legal principles established

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  • A chargee who seeks to exercise statutory power of sale must serve the statutory notices under Section 90 of the Land Act, 2012 and proof of service by registered mail can satisfy that requirement
  • A certificate of service, though not styled an affidavit of service, constitutes adequate proof of service of the 45 days' redemption notice
  • A party who knowingly offers his property as security for a loan converts it into a commodity for sale, and age or sentimental attachment does not ground an injunction

Court orders

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  1. 1.The application for temporary injunction is dismissed
  2. 2.Costs to the defendant

Authorities

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Legislation

  • Land ActSection 90(1), (2), (3)
  • Auctioneers Rules45 days' redemption notice and notification of sale provisions

Cases cited (1)

  • Giella Vs Cassman Brown Ltd
    (1973) E. A. 358
Jurisdiction invoked
Inherent jurisdiction to grant temporary injunctions (application for interlocutory injunction under Civil Procedure); no specific provision stated in 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, "Kiprono Tanui Kiprost v Kenya Commercial Bank Ltd [2017] KEELC 2430 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2430/eng@2017-06-28

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