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ELCDismissedNot stated in the judgment as provided· [2017] KEELC 2661 (KLR)

Theresa Auma Oliech & 2 others v Andrew Oliech Opiyo & another [2017] KEELC 2661 (KLR)

Environment and Land Court
14 June 2017
SKS.M. Kibunja
1,260 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kisumu court let a bank proceed with selling charged family land because the loan predated Kenya's spousal consent law and the applicants couldn't show a strong case.

What this practically means

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Executive summary

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The Plaintiffs, Theresa Auma Oliech, Joseph Okello Oliech and Stephen Oruko, moved the Environment and Land Court by notice of motion dated 9th September 2015 for a temporary injunction restraining Bank of Africa (K) Limited, the 2nd Defendant, from selling by public auction, private treaty or otherwise interfering with the registration status of land parcel West Kisumu/Ojola/1168 pending the hearing of the suit. The 2nd Defendant opposed the application through a replying affidavit sworn by Monica Kamau, a recoveries officer. The court framed two issues: whether the Plaintiffs had established a prima facie case with a probability of success, and costs. The court found that the 1st Defendant had charged the suit property in 2010 to guarantee a Kshs.1,000,000 facility to Nathaniel Oluoch Oliech; the charge predated the Land Act No. 6 of 2012 which introduced the spousal consent requirement, and the 2012 laws did not invalidate pre-existing lawful transactions. The 2nd Defendant had served all statutory notices, its power of sale had accrued, and the Plaintiffs, who were strangers to the charge contract, showed no basis for challenging it. The balance of convenience also favoured the 2nd Defendant. Additionally, the court held the motion was irregularly filed before the 2nd Defendant was enjoined as a party, and the uncountersigned alteration of the motion's date was irregular and illegal. The application was dismissed with costs to the 2nd Defendant and the interim injunction issued on 21st September 2015 was vacated.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case with a probability of success against the 2nd Defendant for a temporary injunction

Holding

They did not; the charge predated the spousal-consent requirement, statutory notices were served, the power of sale had arisen, and the Plaintiffs had no claim against the 2nd Defendant.

Reasoning

The charge over West Kisumu/Ojola/1168 was registered in 2010, before the Land Act No. 6 of 2012 introduced spousal consent requirements, and the 2012 laws did not invalidate pre-existing lawful transactions. The 2nd Defendant served all statutory notices on the borrower and the 1st Defendant, so its power of sale had accrued. The Plaintiffs were not parties to the charge contract and showed no basis for challenging the accrued power of sale. The balance of convenience also favoured the 2nd Defendant given its financial strength and the absence of any challenge by the borrower or 1st Defendant.

p. 2
02

Procedural regularity of the notice of motion

Holding

The motion was irregularly filed on 10th September 2015 against the 2nd Defendant before it was enjoined by the amended plaint, and the unexplained, uncountersigned alteration of the date from '9th' to '22nd' was irregular and illegal.

Reasoning

The 2nd Defendant was only joined through the amended plaint dated and filed on 22nd September 2015, yet the motion was filed on 10th September 2015. The cancellation of '9th' and substitution of '22nd' on the motion was unexplained and was not countersigned by the person making the change. The court treated the motion as dated 9th September 2015, the date the parties themselves used.

p. 3

Legal principles established

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  • The 2012 land laws requiring spousal consent in charging transactions did not invalidate transactions lawfully and procedurally entered into before their enactment.
  • An interlocutory application filed against a party before that party is enjoined to the proceedings is irregular and unprocedural.

Court orders

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  1. 1.The notice of motion dated 9th September 2015 and filed on 10th September 2015 seeking a temporary injunction against the 2nd Defendant is dismissed with costs to the 2nd Defendant.
  2. 2.The interim order of injunction issued on 21st September 2015 is vacated.

Authorities

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Legislation

  • Land ActNo. 6 of 2012 (spousal consent requirement)

Cases cited (1)

  • Barclays Bank of Kenya Ltd –V– Attorney General & another
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land matters (not expressly cited in the 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, "Theresa Auma Oliech & 2 others v Andrew Oliech Opiyo & another [2017] KEELC 2661 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2661/eng@2017-06-14

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