Munir Mohamed Sketty v Omar Sharrif Ahmed & 2 others [2018] KEELC 1952 (KLR)
The bottom line
#A Malindi court refused to stop a bank from selling charged land because the family challenging the transfer failed to show a strong enough case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff (administrator of the estate) established a prima facie case to restrain exercise of the statutory power of sale
No prima facie case was established; the court declined to proceed to the other Giella conditions.
Nassor Muhamad Nahdy was the duly appointed administrator when he transferred the suit property to the 1st Defendant in 2013. The Plaintiff's allegation of forgery of the transfer signature was contradicted by the 1st Defendant's affidavit. The 1st and 2nd Defendants did not deny borrowing Kshs.10,000,000/= from the 3rd Defendant, securing the loan by a charge over the property, or receiving statutory notices before advertisement for sale. The court held the chargee's right of sale had accrued and declined to restrain it.
Balance between the rights of chargor and chargee in enforcement of security
The court applied the principle that the law affords both parties a measure of protection, including the lender's right to enforce security.
Relying on Lord Bingham's dictum in Royal Bank of Scotland PLC v Etridge, the court held that a lender who advances money on the security of land is protected in its reasonable confidence that it may enforce the security at an appropriate time, and denied the injunction would be disproportionate.
Legal principles established
#- The conditions for the grant of an interlocutory injunction are a prima facie case with a probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience.
- A prima facie case in a civil application is a case in which, on the material presented, a court concludes that a right has apparently been infringed so as to call for an explanation from the opposite party.
- Courts must balance the respective rights of chargor and chargee, protecting the lender who advances money on the security of land in reasonable confidence that it may enforce the security.
Court orders
#- 1.Declined to restrain the 3rd Defendant from exercising its power under the security pledged to it by the 1st and 2nd Defendants
- 2.Dismissed the Notice of Motion application dated 20th August, 2018
- 3.Awarded costs of the application to the 3rd Defendant
- Jurisdiction invoked
- High Court (Practice & Procedure) Rules and Order 40 Rules 1, 2, 2 and 9 of the Civil Procedure Rules (interlocutory injunctive relief)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munir Mohamed Sketty v Omar Sharrif Ahmed & 2 others [2018] KEELC 1952 (KLR)", Case Analysis (2018). Not stated on the face of the judgment (Notice of Motion application dated 20th August, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1952/eng@2018-08-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.