Boaz Ligoodi Shipimiru v Standard Chartered Bank (K) Ltd [2017] KEELC 3616 (KLR)
The bottom line
#A Kenyan court refused to stop a bank from selling a borrower's land because he admitted defaulting on the loan and showed no realistic case for winning.
What this practically means
#Executive summary
#Key legal issues
#Whether the Giella test for an interlocutory injunction was met
The test was not met; the plaintiff admitted default and showed no reasonable prospects of success
The plaintiff acknowledged the debt, admitted receiving the notices of sale, and remained in default with the debt increasing. His only request was time to pay, with no real commitment and no evidence of property he claimed he could sell to pay. A plaintiff who defaults is not entitled to be shielded from the consequences of his default.
Whether irreparable loss not compensable in damages was demonstrated
No; mere allegation of sentimental value or a matrimonial home on charged land is insufficient
Relying on Andrew Muriuki Wanjohi v Equity Building Society, the defendant submitted, and the court accepted, that once property is charged it becomes a commodity for sale; the plaintiff did not show harm that damages could not compensate.
Legal principles established
#- The test for an interlocutory injunction requires establishing a prima facie case with probability of success, likelihood of irreparable loss not compensable in damages, and, in case of doubt, a consideration of the balance of convenience
- The court will not protect a plaintiff from the consequences of his own default or give him advantage by virtue of his refusal or failure to make repayment as required
- Charging property to a lender equates it to a commodity for sale, and allegations of sentimental value or a matrimonial home on the property do not establish irreparable harm
Court orders
#- 1.The plaintiff's Notice of Motion dated 23/8/2016 is dismissed
- 2.Costs of the application to the defendant
- Jurisdiction invoked
- Sections 104 and 105 of the Land Act 2012 and Order 40 Rules 1 & 2 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boaz Ligoodi Shipimiru v Standard Chartered Bank (K) Ltd [2017] KEELC 3616 (KLR)", Case Analysis (2017). ELC. No. 160 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3616/eng@2017-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.