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ELCDismissedNotice of Motion dated 1.7.2016 (suit number not stated in the judgment)· [2017] KEELC 3167 (KLR)

Esther Jerotich Rotich & another v Sidian Bank Ltd [Formerly K-Rep Bank Ltd] [2017] KEELC 3167 (KLR)

High Court of Kenya, Environment and Land Division (Eldoret)
31 March 2017
1,801 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiffs moved the court by Notice of Motion dated 1 July 2016 seeking a temporary injunction to restrain the defendant bank from taking any action to recover money due after the expiry of a 90-day statutory notice dated 23 March 2016, and from exercising its statutory power of sale over two charged parcels of land, Pioneer/Ngeria Block 1 (EATEC)/8956 and Tarakwa/Langwai Block 1 (Biseria)/92, pending inter partes hearing and the main suit. They also sought time to remedy the default and an order for taking of accounts of the loan repaid and unpaid. The application was supported by the affidavit of Esther Jerotich Rotich, who deponed that her food kiosk business, the source of loan repayment, had collapsed; that she only received the statutory notice on 11 April 2016; and that fundraising activities were under way. The bank, through its Relationship Manager Patrick Koech, opposed the application, showing that the first plaintiff took a loan of Kshs.1,500,000 in December 2014 secured by the two charges and guarantees, defaulted, was advised of arrears at least three times, and admitted collecting the statutory notice. The court applied the established injunction principles: prima facie case, irreparable harm and balance of convenience. It held that the plaintiffs admitted indebtedness and receipt of sufficient notice, so no prima facie case was established; irreparable harm was not proved; and the balance of convenience favoured the defendant since the debt would outstrip the borrowed sum. The application was dismissed with costs.

Key legal issues

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01

Whether the plaintiffs established a prima facie case with a probability of success

Holding

No prima facie case was established because the plaintiffs admitted indebtedness and receipt of sufficient statutory notice.

Reasoning

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.

p. 3
02

Whether irreparable harm not compensable in damages would occur

Holding

Not established; the burden lay on the plaintiffs to prove the sale would occasion irreparable damage the defendant cannot compensate.

Reasoning

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.

p. 3
03

Where the balance of convenience lies

Holding

It tilts against the injunction because the defendant is likely to suffer damage as the debt will outstrip the borrowed sum.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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

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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, "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.