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ELCDismissedNot stated in the judgment (suit commenced by plaint filed 15 August 2016)· [2017] KEELC 3507 (KLR)

Stephen Kipkatam Kenduiywa t/a Kapchebet Farm v Sidian Bank Limited & another [2017] KEELC 3507 (KLR)

Environment and Land Court
3 February 2017
3,705 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kericho court allowed a bank to auction charged land, holding that serving valid statutory notices and obtaining a professional valuation satisfies the Land Act.

What this practically means

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Executive summary

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This was an interlocutory application for an injunction to restrain the 1st defendant bank from exercising its statutory power of sale over Kericho/Kipchimchim/1179 and 1181, charged as security for a loan of Kshs. 91,809,173/= advanced in March 2014, pending hearing of the plaintiff's suit. The plaintiff argued that the bank's 'courtesy letter' of 29 July 2016 could not found a legal sale, that fresh statutory notices were required before re-advertisement, that the bank's valuations of Kshs. 85,000,000/= and 82,500,000/= were undervaluations breaching Sections 97(1) and (2) of the Land Act, 2012, and that he had a private buyer at Kshs. 120,000,000/=. The bank, through a replying affidavit sworn by Judith Kipngok, maintained that the statutory and auctioneer's notices were served and uncontested, that no fresh notices were required, and that it had complied with its valuation obligations by engaging two independent valuers. Applying Giella vs Cassman Brown, the court held there was no contest on the statutory notices and no law requiring fresh notices before subsequent advertisements. It held that a chargee discharges its valuation duty once it appoints a professional valuer and obtains a report, and cannot dictate the value; divergent valuations by the parties' valuers are no ground to stop an auction, as the proper value will be revealed by the highest bidder. The plaintiff's prospective buyer had failed to secure financing, and the plaintiff admitted an outstanding debt. Finding no prima facie case with probability of success and holding any loss compensable in damages, the court dismissed the application with costs and declared the bank at liberty to advertise the suit properties for sale.

Key legal issues

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01

Whether an applicant for an injunction against a chargee's sale established a prima facie case

Holding

No; the plaintiff conceded the statutory notices, had no materialised buyer, and admitted an outstanding debt, so no probability of success was shown

Reasoning

Applying Giella vs Cassman Brown, the court made a preliminary assessment of the plaintiff's pleadings and affidavit evidence against the bank's replying affidavit. The plaintiff conceded statutory notices were served, admitted owing the bank, and disclosed that his prospective private sale failed because the buyer could not secure financing. With no contest on the notices and no demonstrable illegality in the intended sale, the plaintiff could not show a likelihood of success.

p. 6
02

Whether fresh notices were required before re-advertisement of the suit properties

Holding

No; no law requires fresh notices before subsequent advertisements once the statutory notices and auctioneer's redemption notice have been served

Reasoning

The court found no contest on the original statutory notices and auctioneer's notices. The only argument was whether the 29 July 2016 'courtesy letter' was legally sufficient. The court held that postponement of an earlier sale did not vacate the notices, and found nothing untoward in the courtesy letter or the Daily Nation advertisement of 1 August 2016.

p. 4
03

Whether the bank complied with its valuation duty under Section 97 of the Land Act, 2012

Holding

Yes; the bank engaged two independent professional valuers, discharging its obligation, and cannot be faulted for the values returned

Reasoning

Section 97(2) requires the chargee to ensure a forced sale valuation is undertaken by a valuer. The bank engaged Crystal Valuers and Advent Valuers, whose figures were not far apart. The chargee is not the valuer and cannot direct the value. Section 97(1) requires obtaining the best price reasonably obtainable, which is revealed by properly conducted auction where the highest bidder determines price.

p. 5

Legal principles established

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  • No law requires fresh statutory notices to be issued before a charged property may be advertised for sale or before subsequent advertisements, so long as the statutory notices and auctioneer's redemption notice have been served
  • A chargee discharges its valuation obligation under Section 97(2) of the Land Act once it appoints a professional valuer and obtains a report; it cannot dictate the value the valuer gives
  • An auction should not be stopped merely because the chargee's valuer and the chargor's valuer give different values; the proper value will emerge at the auction sale
  • The mere existence of a prospective private buyer does not stop the chargee from exercising its statutory power of sale by auction

Court orders

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  1. 1.The application for injunction is dismissed with costs
  2. 2.The bank is at liberty to advertise the suit properties for sale if it is so minded

Authorities

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Legislation

  • Land ActSection 97(1) and (2) (with subsections (3)-(7) reproduced)

Cases cited (2)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nora Stella Sandhu vs National Bank of Kenya Ltd & Another
    (2006) eKLR
Jurisdiction invoked
Not expressly invoked; the court exercised original civil jurisdiction over a land/charge dispute as a first-instance suit by plaint

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Stephen Kipkatam Kenduiywa t/a Kapchebet Farm v Sidian Bank Limited & another [2017] KEELC 3507 (KLR)", Case Analysis (2017). Not stated in the judgment (suit commenced by plaint filed 15 August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3507/eng@2017-02-03

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