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ELCDismissedNot stated in the judgment· [2018] KEELC 2595 (KLR)

Hillary Kipkosgei Kiboinnet t/a Sweetland Ltd v Chase Bank (Kenya) Limited & another [2018] KEELC 2595 (KLR)

Environment and Land Court
28 June 2018
1,325 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop a bank auction where the lender followed every required notice step, so borrowers must act on notices, not after.

What this practically means

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Executive summary

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The plaintiff, Hillary Kipkosgei Kiboinnet trading as Sweetland Limited, sought a temporary injunction restraining Chase Bank Limited and Colinet Auctioneers from trespassing upon, subdividing, selling, transferring, leasing or otherwise dealing with land parcel L.R. No. Eldoret Municipality/Block 12/342 pending the hearing and determination of the suit. He argued that he had faithfully repaid a business loan of Kshs.12,000,000, that no statutory notice or demand was issued, that the advertisement notice was too short, and that the property valued at over Kshs.40,000,000 could not be compensated in damages against an alleged outstanding balance of about Kshs.6,000,000. The 1st defendant, through the affidavit of Kevin Kimani, responded that the plaintiff defaulted, arrears stood at Kshs.11,315,477.25, and that demand, statutory notice, redemption notice and a valuation under section 97(2) of the Land Act were all duly issued before the property was advertised for auction. Applying the Giella v Cassman Brown principles, the court found the demand notice served with proof of postage, a 90-day statutory notice issued on 18.2.2016, a 40-day redemption notice given on 8.6.2016, and a valuation conducted before the sale. The court held that the defendants followed due process, so no prima facie case with probability of success was established; no irreparable harm was shown since damages would suffice, a charged property being a commodity liable for sale; and the balance of convenience favoured the defendants. The application was dismissed with costs on 28th June 2018.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

No prima facie case was established because the chargee followed due process, including service of demand, statutory notice and redemption notice

Reasoning

The court found it undisputed that the plaintiff took a Kshs.12,000,000 facility secured by charges over the suit properties and was in arrears. A demand notice was served on 2.11.2015 at the plaintiff's address with proof of postage; a 90-day statutory notice to exercise the statutory power of sale was issued on 18.2.2016; a 40-day redemption notice was issued on 8.6.2016; and a valuation was conducted before the advertisement. Compliance with these statutory steps defeated the claim that notices were not issued.

p. 2
02

Whether the plaintiff would suffer irreparable harm not compensable in damages

Holding

No irreparable harm was demonstrated; the defendants can pay damages and the property is a saleable commodity

Reasoning

The court reiterated that irreparable injury is injury that cannot be adequately compensated in damages and that a prima facie case alone is insufficient. Although the plaintiff argued the property was worth over Kshs.40,000,000 against an outstanding balance of about Kshs.6,000,000, the court held the defendants are capable of paying damages and that sentimental value attached to a charged property cannot justify an injunction.

p. 2
03

Where the balance of convenience lies

Holding

The balance of convenience tilts in favour of the defendants, who are entitled to realise the security to recover the loan

Reasoning

The court reasoned that the defendants had advanced money which the plaintiff still holds together with the land while in default; if the injunction were withheld and the suit ultimately succeeded, the plaintiff would be compensated in damages, whereas denying the defendants the right to sell would leave them without recovery.

p. 2

Legal principles established

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  • A charged property becomes a commodity liable for sale once statutory conditions are met, and sentimental value is no ground for an injunction where the chargee follows due process
  • The power to grant a temporary injunction is discretionary and must be exercised reasonably, judiciously and on sound legal principles following the Giella v Cassman Brown principles

Court orders

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  1. 1.The plaintiff's application for a temporary injunction is dismissed
  2. 2.Costs of the application awarded to the defendants

Authorities

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Legislation

  • Land ActSection 97(2)

Cases cited (1)

  • GIELLA -V- CASSMAN BROWN & CO. LTD
    [1973] E.A. 358
Jurisdiction invoked
Inherent jurisdiction of the court to grant interlocutory injunctive relief in an undetermined suit (not expressly stated in the judgment)

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, "Hillary Kipkosgei Kiboinnet t/a Sweetland Ltd v Chase Bank (Kenya) Limited & another [2018] KEELC 2595 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2595/eng@2018-06-28

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