Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (Notice of Motion dated 11th August, 2017 in a suit founded on a plaint dated 14th August, 2017)· [2018] KEELC 2756 (KLR)

Bando Projects (K) Ltd v Housing Finance Kenya Ltd [2018] KEELC 2756 (KLR)

High Court of Kenya (Environment and Land/Commercial division, Mombasa - not specified)
18 April 2018
2,743 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan borrower who admitted default in writing could not stop the bank from selling charged property, because disputed accounts alone do not justify an injunction.

What this practically means

#

Executive summary

#
This was a Notice of Motion dated 11th August 2017 brought by the Plaintiff, a borrower, under Order 40 Rules 1 and 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking an interlocutory injunction restraining the Defendant bank from selling or interfering with premises developed on Plot No. LR/Mainland North/Section I/17466, and an order for an independent audit of the mortgage and escrow accounts to verify the sums owing and declare any wrongly charged interest null and void. The Plaintiff contended that a construction loan of Kshs 53,600,000 taken in 2013 had been converted to a long-term loan, that it was not in arrears, that the Defendant manipulated the opening balance for 2016, and that the ninety-day statutory notice was premature. The Defendant, through the affidavit of Eunice W. Kamau, countered that a dispute on accounts is not a ground for injunction, that the statutory notice under Section 90 of the Land Act, 2012 issued after default accrued, and that the Plaintiff had not demonstrated a prima facie case or irreparable loss. Komingoi J framed three issues: the injunction threshold, the prematurity of the statutory notice, and costs. Relying on Giella v Cassman Brown, Mrao v First American Bank, Njenga v Njenga, Kenleb Cons, Ooko v Barclays and Thathy v Middle East Bank, the court found the Plaintiff had defaulted, had no prima facie case, would not suffer irreparable loss, and that the balance of convenience favoured the Defendant. The audit prayer was rejected as asking the court to fish for evidence. The application was dismissed with costs to the Defendant on 18th April 2018.

Key legal issues

#
01

Whether the statutory notice under Section 90 of the Land Act, 2012 was premature

Holding

The notice was not premature; it was issued after accrual of the Defendant's rights, following the plaintiff director's email admitting default

Reasoning

The Defendant attached an email dated 7th February 2017 from the Plaintiff's director admitting default and promising to regularise the account within thirty days. Since the statutory notice was issued on 14th March 2017, after default had accrued, it could not be characterised as premature. The Plaintiff did not deny default but instead sought an audit, which would effectively dispose of prayer (b) of the plaint at interlocutory stage.

p. 3
02

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

Holding

No - the Plaintiff had defaulted under a secured credit facility and failed to demonstrate a prima facie case

Reasoning

Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the Plaintiff had been afforded a credit facility secured by a charge, had defaulted, and had not denied the default. An applicant must also make full and frank disclosure and show a right requiring protection (Kenleb Cons). The claim of manipulation of account balances and unreconciled figures was not substantiated.

p. 4
03

Whether the Plaintiff would suffer irreparable loss not compensable by damages

Holding

No - the Plaintiff failed to demonstrate irreparable injury

Reasoning

Following Ooko v Barclays Bank, the onus lies on the applicant to show injury incapable of compensation by damages. The Plaintiff did not discharge this onus, and the balance of convenience was found to tilt towards the Defendant, the Plaintiff having failed to prove that its inconvenience was greater than the Defendant's.

p. 4
04

Whether the court should order an audit/accounts and declare wrongly charged interest null and void

Holding

No - the claim of illegal interest lacked evidentiary support and the prayer sought to make the court fish for evidence

Reasoning

Illegal interest as a basis for an injunction must be supported by clear and sufficient evidence tabled in court. In its absence, the court cannot decide on unsubstantiated grounds, and granting the audit prayer would amount to disposing of prayer (b) of the plaint at an interlocutory stage.

p. 4

Legal principles established

#
  • A dispute as to accounts is not a sufficient ground to restrain a chargee from exercising its statutory power of sale
  • An interlocutory mandatory injunction is granted sparingly and only in exceptional circumstances where the applicant's case is very strong and straightforward
  • An applicant for an injunction must make full and frank disclosure and show a right, legal or equitable, requiring protection

Court orders

#
  1. 1.The Notice of Motion dated 11th August 2017 is dismissed with costs to the Defendant/Respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 2
  • Land ActSection 90

Cases cited (20)

  • Olympic Sports Limited versus School Equipment Centre Limited
    (2012) eKLR
  • Joseph Siro Mosioma versus Housing Finance Corporation of Kenya And 3 Others
    Nairobi HCCC No. 265 of 2007 (unreported)
  • Suleiman versus Amboseli Resort Limited
    (2004) 2 KLR 589
  • Alkman versus Muchoki
    (1984) KLR 353
  • Rameshchand Shamji Kerman Shar And Another versus Playfair Enterprises Limited And Another
    (2015) eKLR
  • Thara Orchards Limited versus Kenya Commercial Bank Limited
    (2012) eKLR
  • Palmy Co. Ltd versus Consolidated Bank of Kenya Limited
    (2014) eKLR
  • Bharmal Kamji Shah And Another versus Shah Depar Devji
  • Lalji Karsan Rabadia And 2 Others versus Commercial Bank of Africa Limited
    (2015) eKLR
  • East Africa Development Bank versus Hyundai Motors Kenya Limited
    (2006) eKLR
  • Nguruman Limited versus Jan Bonde Nelson And 2 Others
    (2014) eKLR
  • Giella versus Cassman Brown And Co. Ltd
    (1973) EA 385
  • Mrao Limited versus First American Bank Limited And 2 Others
    (2003) KLR 125
  • Njenga versus Njenga
    (1991) KLR 401
  • Kenleb Cons Limited versus Gathitu Services Station Limited And Another
    (1990) KLR 557
  • Rajput versus Barclays Bank of Kenya Limited And 3 Others
    (2004) 2 KLR 393
  • Thathy versus Middle East Bank (K) Ltd And Another
    (2012) 1 KLR 595
  • Ooko versus Barclays Bank of Kenya Limited
    (2002) KLR 394
  • Showind Industries Limited And Another
    (2002) 1 EA 284
  • Paul Gitonga Wanjau versus Gathuto Tea Factory Co. Limited And 2 Others
    (2016) eKLR
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (inherent jurisdiction)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bando Projects (K) Ltd v Housing Finance Kenya Ltd [2018] KEELC 2756 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 11th August, 2017 in a suit founded on a plaint dated 14th August, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2756/eng@2018-04-18

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