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ELCPartially AllowedNotice of Motion dated 12th July 2017 (suit number not stated in the judgment)· [2018] KEELC 1267 (KLR)

Lucy Wambui Karanja & another v Chase Bank Kenya Limited (In Receivership) & another [2018] KEELC 1267 (KLR)

Environment and Land Court
26 October 2018
3,002 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted a bank's land auction because the bank could not prove it properly served the required statutory notices before selling.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Thika (L. Gacheru J) on the Plaintiffs' Notice of Motion dated 12th July 2017. The 1st Plaintiff owned four parcels of land (Sigona/1466-1469) charged to the 1st Defendant bank to secure loans to the 2nd Plaintiff - a Kshs.6,000,000 term loan in 2012, restructured in 2014 into a Kshs.10.7 million facility over 84 months. After default, the bank instructed the 2nd Defendant auctioneers, who advertised the properties for public auction on 19th July 2017. The Plaintiffs sought an interim injunction, contending they were never served with the statutory notices required under Sections 90 and 96(2) of the Land Act 2012 and that the property was undervalued. The Defendants asserted valid service via registered post, relying on certificates of postage, and attacked the application as an abuse of process. The court applied the Giella v Cassman Brown criteria. It found the certificates of postage (KK-3(b) and KK-4(b)) were unclear typed documents not confirming postal service, held the Section 96(2) requirements mandatory, and concluded the Plaintiffs had a prima facie case with probability of success. Damages were held inadequate for a breach of statutory notice rights; the balance of convenience favoured preserving the status quo. The court allowed the application 'wholly in terms of prayer No.3', granting the interim injunction until final determination, noted that the accounts prayer would be available after evidence, and, following Cooperative Bank v Patrick Kangethe Njuguna on realization of security, transferred the matter to the Kiambu High Court for hearing and final determination.

Key legal issues

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01

Prima facie case

Holding

The Applicants established a prima facie case with probability of success because the chargee failed to prove due service of the statutory notices

Reasoning

The chargee alleged service of a 90-day notice on 25th November 2016 and a 40-day notice on 17th March 2017, but the certificates of postage (KK-3(b) and KK-4(b)) were unclear typed documents not confirmed by the Postal Office. Since the requirements of Sections 90 and 96(2) of the Land Act are mandatory and the court doubted service, the Applicants demonstrated a prima facie case with probability of success at trial.

p. 3
02

Irreparable loss

Holding

Damages would not adequately compensate a breach of the statutory right to notice; the applicants would suffer irreparable loss

Reasoning

Relying on the Joseph Siro Mosioma case, the court held that damages is not an automatic remedy and cannot be substituted for loss occasioned by a clear breach of the law. A party cannot be condemned to take damages in lieu of a crystallized right protectable by injunction. Therefore the loss from an unlawful sale of the charged land could not be adequately compensated by an award of damages.

p. 4
03

Balance of convenience

Holding

The balance of convenience tilts in favour of maintaining the status quo, namely halting the sale by public auction until the suit is determined

Reasoning

The court found the balance of convenience not in doubt, but even if it were, it would tilt in favour of preserving the status quo that existed before the disputed statutory notices were issued and the sale advertised. Citing Agnes Adhiambo Ojwang v Wycliffe Odhiambo Ojijo, the purpose of an injunction is to preserve the status quo existing before the wrongful act.

p. 4
04

Interlocutory stage - finality of findings

Holding

At interlocutory stage the court does not decide disputed facts with finality but only assesses entitlement to injunction on the usual criteria

Reasoning

Citing Edwin Kamau Muniu v Barclays Bank of Kenya Ltd, the court reiterated that an interlocutory application does not require determination of the very issues to be canvassed at trial. The court's role is limited to deciding whether the applicant is entitled to the injunction on the usual Giella criteria, preserving the trial court's function.

p. 3

Legal principles established

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  • The statutory notice-to-sell requirements under Section 96(2) of the Land Act are mandatory and must be strictly proved by a valid certificate of postage
  • Whether or not to grant an injunction is a discretionary but judicially exercised power
  • Realization of security is a matter reserved for hearing by the High Court

Court orders

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  1. 1.The Notice of Motion dated 12th July 2017 is allowed wholly in terms of prayer No.3 (interim injunction restraining the Defendants from selling, disposing of, entering upon, interfering with or dealing with Title Nos. Sigona/1466, Sigona/1467, Sigona/1468 and Sigona/1469 until the final hearing and determination of the suit)
  2. 2.Prayer No.4 (accounts) noted as available after the calling of evidence
  3. 3.The matter is transferred to the Kiambu High Court for hearing and final determination forthwith

Authorities

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Legislation

  • Registered Land Act Cap 300 (repealed)Section 70
  • Land Act 2012Section 90(1)
  • Land Act 2012Section 96(2)
  • Auctioneers Act

Cases cited (7)

  • Nyutu & Others v Gatheru & Others
    (1990) KLR 554
  • Edwin Kamau Muniu v Barclays Bank of Kenya Ltd
    Nairobi HCCC No. 1118 of 2002
  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • David Ngugi Ngaari v Kenya Commercial Bank Ltd
    (2015) eKLR
  • Joseph Siro Mosioma v Housing Finance Corporation of Kenya & 3 Others
    Nairobi HCCC No.265 of 2007 (4R)
  • Agnes Adhiambo Ojwang v Wycliffe Odhiambo Ojijo
    Kisumu HCCC No.205 of 2000
  • Cooperative Bank of Kenya v Patrick Kangethe Njuguna & Others
    Civil Appeal No.83 of 2016 at Mombasa
Jurisdiction invoked
Original civil jurisdiction; the court noted that realization of security is a matter reserved for the High Court and ordered transfer to the Kiambu High Court

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, "Lucy Wambui Karanja & another v Chase Bank Kenya Limited (In Receivership) & another [2018] KEELC 1267 (KLR)", Case Analysis (2018). Notice of Motion dated 12th July 2017 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1267/eng@2018-10-26

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