Joseph Kariuki Karanja v Guaranty Trust Bank (Kenya) Ltd & another [2018] KEELC 2725 (KLR)
The bottom line
#A Kenyan court refused to stop a property auction because the borrower had been properly served with legal notices and had himself admitted owing loan arrears.
What this practically means
#Executive summary
#Key legal issues
#Service of statutory notices under Sections 90 and 96 of the Land Act
The plaintiff was duly served with and acknowledged the Section 90 statutory notice and the Section 96(2) 40 days' notice to sell
The court examined the documents annexed to the 1st defendant's replying affidavit and found a statutory notice dated 12th October 2015 served and acknowledged by signature on 24th November 2015, and a 40 days' notice to sell dated 21st March 2016 personally served and acknowledged on 2nd April 2016.
Whether the auction sale was advertised
The contention that there was no advertisement failed
The 1st defendant placed uncontroverted evidence before the court showing an advertisement placed in the Daily Nation Newspaper of 19th June 2017 notifying the plaintiff of the auction of the suit property.
Whether the plaintiff was in loan arrears
The plaintiff's claim of no arrears was contradicted by his own written admissions
In letters dated 22nd September 2016 and 12th March 2017 the plaintiff sought postponement of the auction, promised payments, and thereby admitted arrears; his assertion that he was not in arrears could not stand.
Prima facie case for interlocutory injunction
No prima facie case with probability of success was established
Applying the Giella v Cassman Brown principles as reiterated in Nguruman, the court found that because the plaintiff was duly served with the statutory notices, the sale was advertised, and the plaintiff admitted arrears, he failed the first limb of the injunction test and the motion was dismissed.
Legal principles established
#- An applicant for an interlocutory injunction must establish a prima facie case with a probability of success; injunction will not issue where damages are adequate; if in doubt, the court decides on a balance of convenience
- A chargee who has served and obtained acknowledgment of the statutory notices under Sections 90 and 96(2) of the Land Act satisfies the prerequisite notices for exercise of the statutory power of sale
Court orders
#- 1.Notice of Motion dated 13th July 2017 dismissed
- 2.Costs of the application to the defendants
- Jurisdiction invoked
- Inherent jurisdiction of the court to grant interlocutory injunctive relief pending hearing and determination of the suit (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kariuki Karanja v Guaranty Trust Bank (Kenya) Ltd & another [2018] KEELC 2725 (KLR)", Case Analysis (2018). Notice of Motion dated 13th July 2017 (suit at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2725/eng@2018-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.