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ELCDismissedNotice of Motion dated 13th July 2017 (suit at Nakuru)· [2018] KEELC 2725 (KLR)

Joseph Kariuki Karanja v Guaranty Trust Bank (Kenya) Ltd & another [2018] KEELC 2725 (KLR)

Environment and Land Court
3 May 2018
1,235 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (D. O. Ohungo, J) determined the plaintiff's Notice of Motion dated 13th July 2017 seeking a temporary injunction restraining the 1st defendant (his lender) and the 2nd defendant (auctioneer) from selling or interfering with Dundori/Lanet Block 5/235, charged to secure a loan of KShs 3,000,000 obtained on 14th August 2013. The plaintiff asserted that as at May 2017 he was not in arrears, that an outstanding balance of only KShs 419,062 remained, and that no notices under Sections 90 and 96 of the Land Act were issued before an auction scheduled for 14th July 2017. The defendants, through an affidavit of Ruth Muiruri, Head of Legal Services of the 1st defendant, exhibited a statutory notice dated 12th October 2015 served and signed for on 24th November 2015, a 40 days' notice to sell dated 21st March 2016 served on 2nd April 2016, and notifications of sale for auctions in September 2016, March 2017 and July 2017, with an advertisement in the Daily Nation of 19th June 2017. They showed the plaintiff repeatedly sought and obtained postponements on payment promises he failed to honour, and remained indebted. Applying the Giella v Cassman Brown principles as reiterated in Nguruman Limited v Jan Bonde Nielsen, the court found the plaintiff was duly served with the statutory notices, that the sale was advertised, and that his own letters admitted arrears, defeating the contention of no arrears. The court held no prima facie case with a probability of success was established and dismissed the motion on 3rd May 2018 with costs to the defendants.

Key legal issues

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01

Service of statutory notices under Sections 90 and 96 of the Land Act

Holding

The plaintiff was duly served with and acknowledged the Section 90 statutory notice and the Section 96(2) 40 days' notice to sell

Reasoning

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.

p. 2
02

Whether the auction sale was advertised

Holding

The contention that there was no advertisement failed

Reasoning

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.

p. 2
03

Whether the plaintiff was in loan arrears

Holding

The plaintiff's claim of no arrears was contradicted by his own written admissions

Reasoning

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.

p. 2
04

Prima facie case for interlocutory injunction

Holding

No prima facie case with probability of success was established

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Notice of Motion dated 13th July 2017 dismissed
  2. 2.Costs of the application to the defendants

Authorities

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Legislation

  • Land ActSection 90
  • Land ActSection 96(2)

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others
    [2014] eKLR
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

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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, "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.