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ELCDismissedNot stated in judgment (Chamber Summons filed 4th March 2016)· [2017] KEELC 3680 (KLR)

Benson Murithi Nyagah v Kenya Industrial Estate & another [2017] KEELC 3680 (KLR)

Environment and Land Court
1 February 2017
BOB.N. Olao
1,501 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The court refused to stop a bank from selling land because the auction had already happened—move fast or lose the chance to block a sale.

What this practically means

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Executive summary

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The plaintiff filed a Chamber Summons on 4th March 2016 under Order 40 Rules 1(a)(b) and 2(1)(2) of the Civil Procedure Rules seeking a temporary injunction restraining the 1st defendant from offering or advertising parcel MBETI/KIAMURINGA/600 for sale by public auction, and for registration of that injunction with the Land Registrar, Mbeere District. The 1st defendant opposed, deponing through its Manager Legal Services, Edna Adala, that the land had been charged to secure a Ksh. 500,000 loan to the 2nd defendant, that the plaintiff stood guarantor, and that following default, statutory notices under Sections 90 and 96 of the Land Act were issued, the land valued, and the property sold by public auction on 23rd February 2016 to Francis Kivuti Mutaka, the highest bidder at Ksh. 1,500,000. The 1st defendant also argued there was no properly filed suit and that the purchaser had not been enjoined as required by Section 99 of the Land Act. The court first confirmed that an Originating Summons filed on 1st December 2015 constituted a proper suit. It then held the application had been overtaken by events: the auction had concluded before the plaintiff moved to court, and applying the Court of Appeal decision in Esso Kenya Ltd v Mark Makwata Okiya, an injunction cannot restrain an event that has already taken place. Further, no order could affect the rights of the purchaser who was not a party. On the merits, there was full compliance with the statutory chargee's procedures, the deed of guarantee was signed by the plaintiff before an advocate, and submissions regarding spousal consent and exaggerated arrears were unsupported by affidavit evidence. The application was dismissed with costs to the 1st defendant.

Key legal issues

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01

Whether a suit was properly before the court

Holding

A suit was properly instituted by Originating Summons, which is one of the ways of instituting a suit, notwithstanding the plaintiff's subsequent notice to act in person

Reasoning

The 1st defendant argued no suit existed and the orders sought were unavailable. The court traced the Originating Summons filed on 1st December 2015 under Order 37 Rule 4 and Sections 1A, 3A and 63(e) of the Civil Procedure Act and Sections 103, 104 and 106 of the Land Act, and held that an Originating Summons is a valid mode of instituting a suit, so the injunction application was properly anchored on an existing suit.

p. 2
02

Whether a temporary injunction could issue over MBETI/KIAMURINGA/600

Holding

The injunction could not issue because the property had already been sold by public auction to a non-party before the application was filed, and no basis for an injunction existed even on the merits

Reasoning

The auction took place on 23rd February 2016, the deposit and balance were paid, and the purchaser Francis Kivuti Mutaka was not enjoined. On the merits, statutory notices under Sections 90 and 96 of the Land Act were issued, the land valued and notification of sale served, and the deed of guarantee signed by the plaintiff before an advocate belied submissions that he was not privy to the charge. Allegations of lack of spousal consent were unsupported by affidavit.

p. 3

Legal principles established

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  • An injunction cannot issue to restrain an event that has already taken place
  • A court cannot make an order affecting the rights of a third party who has not been enjoined in the suit
  • An injunction will not issue restraining a mortgagee from exercising the power of sale merely because the amount due is disputed; it issues only on payment of the amount due or proof of fraud or impropriety

Court orders

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  1. 1.The plaintiff's Chamber Summons filed on 4th March 2016 is dismissed
  2. 2.Costs of the application awarded to the 1st defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a)(b) and 2(1)(2)
  • Civil Procedure RulesOrder 37 Rule 4
  • Civil Procedure ActSections 1A, 3A and 63(e)
  • Land ActSections 90, 96, 99, 103, 104 and 106
  • Land Registration ActSection 93(3)(a)

Cases cited (1)

  • ESSO KENYA LTD VS MARK MAKWATA OKIYA
    Civil Appeal No. 69 of 1991
Jurisdiction invoked
Order 40 Rules 1(a)(b) and 2(1)(2) of the Civil Procedure Rules; suit instituted by Originating Summons under Order 37 Rule 4, Sections 1A, 3A and 63(e) of the Civil Procedure Act and Sections 103, 104 and 106 of the Land Act

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, "Benson Murithi Nyagah v Kenya Industrial Estate & another [2017] KEELC 3680 (KLR)", Case Analysis (2017). Not stated in judgment (Chamber Summons filed 4th March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3680/eng@2017-02-01

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