Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 15th June 2016 (Nakuru)· [2018] KEELC 2721 (KLR)

Supa Duka Nakuru Ltd v Agricultural Finance Corporation [2018] KEELC 2721 (KLR)

High Court of Kenya
11 May 2018
1,134 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

#

The High Court in Nakuru allowed a lender to proceed toward selling charged land because the borrower only disputed the amount owed without proving a strong case.

What this practically means

#

Executive summary

#
The plaintiff company, through its director Joseph Boro Ngera, moved the court by Notice of Motion dated 15th June 2016 seeking a temporary injunction to restrain the defendant from selling, disposing of, alienating or interfering with land parcel No. 4730/54 (Original Number 4730/6/14) Township, pending hearing of the suit. The plaintiff had obtained a loan of KShs 11,600,000 in 2000 and charged the suit property as security, defaulted, and alleged that no statutory notice preceded instructions to Legacy Auctioneers to auction the property. It also complained of varying demand figures and absence of statements of account. The defendant, through its Legal Officer John M. Kithinji, opposed the application, exhibiting statutory notices dated 12th February 2008, 21st August 2014 and 12th October 2015, and pointing to the plaintiff's admitted indebtedness, unfulfilled promises to pay, and prior suits (HCCC No. 2006 dismissed for want of prosecution, and the pending Nakuru CMCC No. 10 of 2009). The court applied the Giella test as refined in Nguruman. It found the statutory notices valid and unchallenged, held that a dispute over the amount owing cannot stop a chargee from exercising its statutory power of sale (citing Halsbury's Laws, volume 32), and concluded that no prima facie case with probability of success was established. The application was dismissed with costs to the defendant on 11th May 2018.

Key legal issues

#
01

Whether statutory notices under Section 33(1) of the Agricultural Finance Corporation Act were issued

Holding

Valid statutory notices were issued on 12th February 2008, 21st August 2014 and 12th October 2015; the plaintiff's contention that none was issued was unchallenged by any further affidavit

Reasoning

The defendant exhibited three statutory notices spanning 2008 to 2015. The plaintiff, though granted leave, never filed a further affidavit to rebut them. The court found the notices valid and rejected the plaintiff's assertion that no statutory notice preceded the auction. Failure to rebut evidence left the defendant's position unchallenged.

p. 2
02

Whether a dispute over the amount owed and interest justifies an injunction against sale

Holding

No - a dispute on the amount owing is not a ground to restrain a mortgagee from exercising its power of sale

Reasoning

Relying on Halsbury's Laws of England volume 32 paragraph 725, the court held that a mortgagee will not be restrained merely because the amount due is disputed or a redemption action is pending; restraint lies only where the mortgagor pays the amount claimed into court, unless the claim is excessive under the mortgage terms.

p. 2
03

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

Holding

The plaintiff failed at the first Giella stage, so the application had to fail

Reasoning

Given the admitted default, valid statutory notices, and the law on disputed amounts, the court found no prima facie case with probability of success. Following Nguruman, once the first hurdle fails, irreparable injury and balance of convenience need not be considered. The interlocutory injunction was therefore refused with costs.

p. 2

Legal principles established

#
  • A dispute on the amount owing cannot be a basis to stop a chargee from exercising the statutory power of sale
  • The three Giella conditions are sequential, distinct hurdles; failure at the first stage ends the inquiry

Court orders

#
  1. 1.Notice of Motion dated 15th June 2016 is dismissed
  2. 2.Costs of the application to the defendant

Authorities

#

Legislation

  • Agricultural Finance Corporation ActSection 33(1)

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Inherent jurisdiction of the High Court over interlocutory injunction applications in a land/charge dispute

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Supa Duka Nakuru Ltd v Agricultural Finance Corporation [2018] KEELC 2721 (KLR)", Case Analysis (2018). Notice of Motion dated 15th June 2016 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2721/eng@2018-05-11

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