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ELCDismissedNyeri HCCC (not stated in judgment)· [2017] KEELC 3475 (KLR)

Lucy Njeri Macharia v Frashian Wambui Njeri & another [2017] KEELC 3475 (KLR)

High Court of Kenya
1 February 2017
LWL N Waithaka
2,314 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 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 borrower ignored a court order to deposit Kshs 100,000.

What this practically means

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Executive summary

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The plaintiff, Lucy Njeri Macharia, sued seeking a permanent injunction restraining the defendants from selling, alienating or dealing with parcel Loc. 11/Maragi/5068, and by notice of motion dated 22nd July 2016 sought a temporary injunction pending trial. She deponed that she was the registered owner, that she had stood guarantor for her daughter (the 1st respondent) who obtained a loan from the 2nd respondent bank, that the charge document was never availed to her, that spousal consent was not obtained despite the property being matrimonial property, and that no statutory notices were served on her. The 2nd respondent opposed, contending that she executed the charge and swore she was single, and that demand and notification-of-sale notices under Sections 90 and 96 of the Land Act were duly served by registered mail. The 1st respondent supported the application, disputing the postal address used for service. On 28th July 2016 the court conditionally ordered a deposit of Kshs 100,000 with the bank; only Kshs 50,000 was paid and no further payments followed. Applying the Giella v Cassman Brown test, and noting that compliance with Sections 90, 96 and 97 of the Land Act and the spousal consent question required trial, the court held the applicant was not entitled to equitable relief because she had not complied with the court's conditional order, following Belcom Agencies, Kwality Candies and Aggrey Peter Thande. The application was dismissed with costs to the 2nd respondent on 1st February 2017, with the substantive issues left for trial.

Key legal issues

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01

Compliance with the Land Act statutory pre-conditions to sale and spousal consent

Holding

These are matters for trial, not for determination on an interlocutory application

Reasoning

The court held that compliance with Sections 90(2)(a), 96(2) and (3) and 97(2) of the Land Act, together with the spousal consent question, requires production of documents and witnesses at trial. At the interlocutory stage, the court need only consider the Giella conditions, per American Cyanamid.

p. 3
02

Whether the applicant deserved injunctive relief given her non-compliance with the court's conditional order

Holding

No; having deposited only Kshs 50,000 of the Kshs 100,000 ordered, the applicant had not come to equity with clean hands and was denied the equitable remedy of injunction

Reasoning

Relying on Belcom Agencies, Kwality Candies and Aggrey Peter Thande, the court held that injunction is an equitable remedy; a litigant who obtains injunction on conditions and fails to comply, while defaulting on the underlying loan, is not entitled to equitable relief. The court adopted the Thande holding and dismissed the application with costs.

p. 4

Legal principles established

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  • An interlocutory applicant must establish a prima facie case with probability of success, inadequacy of damages, and balance of convenience
  • A litigant who fails to comply with conditional orders of the court is not entitled to equitable relief
  • At the interlocutory stage the court does not resolve conflicts of evidence or decide difficult questions of law

Court orders

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  1. 1.The application dated 22nd July, 2016 is dismissed
  2. 2.Costs of the application awarded to the 2nd respondent

Authorities

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Legislation

  • Land Act, 2012Section 103
  • Land Act, 2012Section 104
  • Land Act, 2012Section 90 (including s.90(2)(a))
  • Land Act, 2012Section 96 (including ss.96(2) and (3))
  • Land Act, 2012Section 97(2)

Cases cited (10)

  • Peter Ngure Kihuto v Co-operative Bank of Kenya Ltd & Another
    [2015] eKLR
  • Albert Mario Cordeiro & Another v Vishram Shamji
    [2015] eKLR
  • David Ngugi Ngaari v Kenya Commercial Bank Ltd
    [2015] eKLR
  • Joel Gitau Macharia & Others v Mary Mwango Njuguna & Another
    [2015] eKLR
  • Patrick Karimi Wairagu t/a Thigi General Stores vs. Barclays Bank of Kenya Ltd & Another
    Nakuru HCCC No. 93 of 2011
  • Giella vs. Cassman Brown & Company Ltd
    (1973) E.A 358
  • American Cyanamid Co. v Ethicon Limited
    (1975) 1 ALL ER 504
  • Belcom Agencies Limited & another v Ecobank Kenya Limited & another
    [2015] eKLR
  • Kwality Candies & Sweets Ltd v Industrial Development Bank Ltd
    [2007] eKLR
  • Aggrey Peter Thande v Co-operative Bank of Kenya & 2 Others
    [2009] eKLR
Jurisdiction invoked
Section 103 of the Land Act, 2012 (injunctive relief to a chargor against a chargee's exercise of statutory power of sale)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lucy Njeri Macharia v Frashian Wambui Njeri & another [2017] KEELC 3475 (KLR)", Case Analysis (2017). Nyeri HCCC (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3475/eng@2017-02-01

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