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ELCDismissed· [2017] KEELC 2490 (KLR)

Remmy K. Sang v Family Bank Limited & 12 others [2017] KEELC 2490 (KLR)

Environment and Land Court
15 June 2017
1,376 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

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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

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Executive summary

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The plaintiff, Remmy K. Sang, moved the court for a temporary injunction restraining the 1st defendant from selling by public auction or interfering with title over parcel Nandi/Ndubeneti/476, and for an order compelling the 1st defendant to discharge and release his title to Pioneer/Ngeria/Block 1 (EATC)/12206. He argued he had cleared the loan facility, that the loan had been advanced to Sosiani Community Dairy Farmers Group and not Sosiani Community Dairy Ltd, and that the statutory notices were therefore a nullity. The 1st defendant countered that it had advanced Kshs.5,071,000/= to the 2nd defendant secured by a third-party charge over the plaintiff's property, supported by a deed of guarantee and indemnity; the loan was outstanding at Kshs.4,787,118.94, statutory notices had issued, and the plaintiff, as guarantor, was liable. The court framed the threshold question as the identity of the borrower. It noted contradictions: the offer, charge and deed of guarantee named Sosiani Community Dairy Ltd, while the account and the statutory notice of 16.2.2015 named Sosiani Community Dairy Farmers Group. Holding it unclear whether the money went to the company or the group, the court found a prima facie case with a likelihood of success on that ground alone. However, it found no irreparable harm since the 1st defendant, a financial institution, could pay damages. On balance of convenience it ordered a status quo preserving the plaintiff's property pending the full hearing, and dismissed the application. The judgment was delivered at Eldoret on 15th June 2017 by A. Ombwayo, Judge.

Key legal issues

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01

Identity of the borrower

Holding

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

Reasoning

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.

p. 3
02

Prima facie case

Holding

Found in the plaintiff's favour on the identity-of-borrower ground alone

Reasoning

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.

p. 3
03

Irreparable harm

Holding

Not demonstrated; the 1st defendant, being a financial institution, is capable of paying damages

Reasoning

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.

p. 3
04

Balance of convenience

Holding

Tilts toward preserving the status quo pending full hearing

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application (for temporary injunction and an order compelling the 1st defendant to discharge and release the plaintiff's title) is dismissed
  2. 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

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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, "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.