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ELCDismissedNot stated in the judgment (Notice of Motion dated 8th March 2017, filed 14th March 2017)· [2017] KEELC 3422 (KLR)

Caroline Kerubo Ongaga v Joseph Mungai Gikonyo t/a Garam Investments Auctioneers & another [2017] KEELC 3422 (KLR)

Environment and Land Court
16 March 2017
1,166 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop an already-completed property auction because the borrower had defaulted on her loan and waited too long to act.

What this practically means

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Executive summary

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The plaintiff, Caroline Kerubo Ongaga, moved the court by Notice of Motion dated 8th March 2017 seeking a stay of an auction of her charged property, LR. No. NGONG/NGONG/54730, conducted on 28th February 2017, and a temporary injunction restraining the defendants from exercising rights under a charge dated 27th June 2013, invoking Order 40 Rule 1 of the Civil Procedure Rules, Sections 3, 3A and 63(c) of the Civil Procedure Act and Sections 90 and 96 of the Land Act. She admitted charging the property to the 2nd Defendant for Kshs. 3,900,000, admitted default from February 2016, and claimed the auction was unlawful because statutory notices were not issued and she was not given time to find her own buyer. The defendants did not enter appearance despite service, and the application proceeded unopposed by way of oral submissions. Applying the Giella v Casman Brown test, Christine Ochieng J held that the applicant had not established a prima facie case with a probability of success: she did not deny the debt or the charge, had been seeking a buyer herself, knew the auction was scheduled yet never sought an injunction before the sale date, and knew the property had fetched Kshs. 4.875 million. Relying on Stanley Kirui v Westlands Pride Limited, the court held a defaulting contracting party cannot equitably obtain an injunction. The procedural complaints were held unsuitable for resolution on untested affidavit evidence at the interlocutory stage. The notice of motion was dismissed and the interim orders declined on 16th March 2017 at Kajiado.

Key legal issues

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01

Whether the applicant established a prima facie case for interlocutory injunctive relief

Holding

She did not; she admitted the charge, the debt, default since February 2016, and knowledge of the auction

Reasoning

Applying Giella v Casman Brown, the court found the applicant did not dispute the charge or the debt and admitted default since February 2016. She was aware the auction was scheduled, sought an injunction only ten days after it occurred, and knew the property had sold for Kshs. 4.875 million. Her procedural complaints about statutory notices required a full trial and could not be resolved on untested affidavit evidence.

p. 3
02

Whether an equitable injunction can issue to a defaulting borrower

Holding

No; a party who fails to perform her contractual obligations cannot obtain an injunction restraining the other party's enforcement of its covenants

Reasoning

The court adopted the holding in Stanley Kirui v Westlands Pride Limited that a contracting party in default cannot equitably restrain the other party's enforcement. Having admitted default in loan repayment since February 2016 while owing the 2nd Defendant Kshs. 3,900,000 secured by the charge, the plaintiff could not invoke equity to restrain exercise of the chargee's statutory power of sale.

p. 3
03

Whether interlocutory proceedings can adjudicate the alleged procedural irregularities of the auction

Holding

No; the issues raised are not capable of resolution at the interlocutory stage and must await full trial

Reasoning

The court held that the plaintiff's contentions about lack of statutory notice and the alleged unprocedural auction turned on inconsistent, untested affidavit evidence, which is unsuitable for full adjudication at the interlocutory stage. The court must refrain from determining such issues on a Notice of Motion and leave them to trial.

p. 3

Legal principles established

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  • A party in default of a contract cannot obtain an injunction to restrain breach by the other party, as that would be inequitable
  • The Giella test governs interlocutory injunctions: prima facie case with probability of success, irreparable loss not compensable in damages, and balance of convenience if in doubt

Court orders

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  1. 1.The notice of motion dated 8th March 2017 is dismissed
  2. 2.The interim orders sought by the Plaintiff are declined

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure ActSections 3, 3A, 63(c)
  • Land ActSections 90 and 96

Cases cited (2)

  • Giella Vs. Casman Brown & Co. Ltd
    Civil Appeal No. 51 of 1972
  • Stanley Kirui -vs- Westlands Pride Limited
    Nairobi ELC 184 of 2013
Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules; Sections 3, 3A and 63(c) of the Civil Procedure Act; Sections 90 and 96 of the Land Act

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, "Caroline Kerubo Ongaga v Joseph Mungai Gikonyo t/a Garam Investments Auctioneers & another [2017] KEELC 3422 (KLR)", Case Analysis (2017). Not stated in the judgment (Notice of Motion dated 8th March 2017, filed 14th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3422/eng@2017-03-16

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