Esther Jerotich Rotich & another v Sidian Bank Ltd [Formerly K-Rep Bank Ltd] [2017] KEELC 3167 (KLR)
The bottom line
#A Kenyan court refused to stop a bank from selling charged land because the borrowers admitted the debt and had received proper notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs established a prima facie case with a probability of success
No prima facie case was established because the plaintiffs admitted indebtedness and receipt of sufficient statutory notice.
The plaintiffs admitted owing the bank and were fundraising to clear the loan. They also admitted being called and collecting the 90-day statutory notice on 11.4.2016. An applicant who admits the debt and proper notice cannot demonstrate a serious question to be tried against exercise of the statutory power of sale.
Whether irreparable harm not compensable in damages would occur
Not established; the burden lay on the plaintiffs to prove the sale would occasion irreparable damage the defendant cannot compensate.
The court reiterated that existence of a prima facie case alone is insufficient; the applicant must show irreparable injury and no other remedy. The plaintiffs led no evidence that the sale of the charged parcels would cause damage incapable of compensation in damages.
Where the balance of convenience lies
It tilts against the injunction because the defendant is likely to suffer damage as the debt will outstrip the borrowed sum.
The court compared the inconvenience to each side: withholding the injunction would expose the bank to a growing debt exceeding the borrowed amount, whereas the plaintiffs had admitted the debt and were merely seeking time. The comparative mischief therefore favoured the defendant.
Legal principles established
#- The grant of a temporary injunction is discretionary and must be exercised reasonably, judiciously and on sound legal principles, applying the Giella test of prima facie case, irreparable harm and balance of convenience.
- A prima facie case is a serious question to be tried, not a case proved to the hilt, and the burden lies on the plaintiff to establish it.
- Irreparable injury must be such as cannot be adequately compensated in damages, and the burden of proving it rests on the applicant.
Court orders
#- 1.The application for temporary injunction is dismissed with costs to the defendant
- Jurisdiction invoked
- Original civil jurisdiction; interlocutory application for temporary injunction under order for injunction pending the main suit (no specific constitutional/statutory provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Jerotich Rotich & another v Sidian Bank Ltd [Formerly K-Rep Bank Ltd] [2017] KEELC 3167 (KLR)", Case Analysis (2017). Notice of Motion dated 1.7.2016 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3167/eng@2017-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.