Remmy K. Sang v Family Bank Limited & 12 others [2017] KEELC 2490 (KLR)
The bottom line
#An Eldoret court refused to fully block a property auction over a loan dispute, but froze the status quo because no one was sure which entity actually borrowed the money.
What this practically means
#Executive summary
#Key legal issues
#Identity of the borrower
The evidence was contradictory: the account and statutory notice referred to Sosiani Community Dairy Farmers Group while the charge and deed of guarantee referred to Sosiani Community Dairy Ltd, making identity of the borrower a triable issue
The court compared the offer letter, charge, deed of guarantee and the statutory notice dated 16.2.2015. The account availed by the 1st defendant was in the name of the Group, not the Ltd company, while the security documents named the company. The court held it was unclear whether the money was advanced to the group or the company and that this needed to be established at the hearing.
Prima facie case
Found in the plaintiff's favour on the identity-of-borrower ground alone
The court held that the confusion over which legal entity borrowed the money entitled the plaintiff to a finding of a prima facie case with a likelihood of success, since both the company and the self-help group are legal entities and it matters who was guaranteed by the plaintiff.
Irreparable harm
Not demonstrated; the 1st defendant, being a financial institution, is capable of paying damages
The court found the plaintiff had not shown harm that damages could not compensate, since the defendant is a financial institution capable of paying damages if the plaintiff succeeds.
Balance of convenience
Tilts toward preserving the status quo pending full hearing
Because of the confusion as to who borrowed the money, the court found the plaintiff was likely to lose his property through that confusion while the defendant could recover from either entity, justifying a status quo order rather than an injunction.
Legal principles established
#- A plaintiff alleging confusion as to the identity of the borrower between two legal entities raises a triable issue supporting a prima facie case, but where irreparable harm is not shown, relief is determined on balance of convenience
Court orders
#- 1.The application (for temporary injunction and an order compelling the 1st defendant to discharge and release the plaintiff's title) is dismissed
- 2.Order of status quo that the plaintiff is not to lose his property pending the hearing of the suit
- Jurisdiction invoked
- Inherent jurisdiction to grant interlocutory injunctions (application for temporary injunction pending hearing of the suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Remmy K. Sang v Family Bank Limited & 12 others [2017] KEELC 2490 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2490/eng@2017-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.