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ELCDismissedELC. No. 160 of 2016· [2017] KEELC 3616 (KLR)

Boaz Ligoodi Shipimiru v Standard Chartered Bank (K) Ltd [2017] KEELC 3616 (KLR)

Environment and Land Court
3 February 2017
905 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff moved the Environment and Land Court at Kakamega by Notice of Motion dated 23 August 2016, brought under sections 104 and 105 of the Land Act 2012 and Order 40 Rules 1 & 2 of the Civil Procedure Rules, seeking to restrain Standard Chartered Bank (K) Ltd from selling land parcel ISUKHA/SHIRERE/2289, offered as security for a loan in default. Prayer (ii) had already been granted by consent on 27 September 2016; the remaining prayers sought an injunction barring sale until the suit was heard and determined, plus costs. The defendant filed grounds of opposition and submissions, arguing that the plaintiff had admitted the debt and receipt of the statutory notices, that the Giella test for an interlocutory injunction was not met, and, citing the Ichatha and Wanjohi decisions, that the court should not protect a defaulting borrower, that charging land equates it to a commodity for sale, and that the balance of convenience favoured the lender since the debt was growing. The plaintiff filed no submissions. Kaniaru J found the plaintiff in continuing default, with the debt increasing, and held that his suit showed no reasonable prospects of success: he merely sought time to pay without real commitment, and no evidence established the property he claimed he could sell. The application was dismissed with costs on 3 February 2017.

Key legal issues

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01

Whether the Giella test for an interlocutory injunction was met

Holding

The test was not met; the plaintiff admitted default and showed no reasonable prospects of success

Reasoning

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.

p. 2
02

Whether irreparable loss not compensable in damages was demonstrated

Holding

No; mere allegation of sentimental value or a matrimonial home on charged land is insufficient

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The plaintiff's Notice of Motion dated 23/8/2016 is dismissed
  2. 2.Costs of the application to the defendant

Authorities

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Legislation

  • Land Actsections 104 and 105
  • Civil Procedure RulesOrder 40 Rules 1 & 2

Cases cited (3)

  • GILELA VS CASSMAN BROWN & CO. LTD
    [1973] EA 358
  • FRANCIS J.K. ICHATHA VS HOUSING FINANCE COMPANY OF KENYA
    Civil Application No.108/2005
  • ANDREW MURIUKI WANJOHI VS EQUITY BUILDING SOCIETY & 2 Others
    [2006] eKLR
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

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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, "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.