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ELCDismissedNot stated in the judgment· [2018] KEELC 2805 (KLR)

Asuntah Wamwirua Njoroge v Housing Finance Corporation Ltd & another [2018] KEELC 2805 (KLR)

Environment and Land Court
19 June 2018
3,347 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a bank's planned property sale to proceed because the wife challenging it failed to prove the properties were matrimonial homes.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Thika (L. Gacheru J) on a Notice of Motion by the Plaintiff/Applicant seeking injunctions restraining the sale of two properties (LR. No. Ruiru/Kiu Block 3/434 Kahawa Sukari and LR. No. 28736 House No. 118 Ole Ngai Town House, Bahati Ridge, Thika), and an order nullifying the charge registered in favour of the 1st Respondent. The Applicant claimed to be the wife of the Chargor, John Njoroge Mburu, and that her spousal consent was never obtained when the properties, alleged matrimonial homes, were charged to secure a mortgage facility of Kshs.27,598,000 advanced to the Chargor and his alleged co-borrower/spouse Loice Wairimu Ndiba. The 1st Respondent asserted that the statutory power of sale had validly accrued after default, that spousal consent was given by Loice Wairimu Ndiba, and that the Chargor was not joined. Applying the Giella v Cassman Brown principles, the Court found no prima facie case: the Applicant did not prove she occupied the properties with the registered proprietor as a matrimonial home, and she failed to join the alleged errant spouse as a necessary and proper party. Irreparable loss was not established since a charged property is a commodity for sale compensable in damages; the balance of convenience favoured the chargee; and the nullification prayer was a mandatory/final order unmerited at the interlocutory stage. The application was dismissed entirely with costs to the Defendants/Respondents.

Key legal issues

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01

Whether the Applicant established a prima facie case

Holding

She failed; she did not prove the properties were matrimonial homes or that she occupied them with the registered proprietor, and she did not enjoin the Chargor spouse

Reasoning

The Applicant relied only on the allegation that she lives on Ruiru/Kiu Block 3/434. Section 2 of the Land Act defines a matrimonial home as property occupied by spouses as their family home, so she had to prove occupation with the registered proprietor. The Chargor John Njoroge Mburu, whose alleged failure to obtain consent was the core complaint, was not joined, leaving unclear whether the marriage still existed. Following Susan Anne Karanja and Esther Njeri Mwangi, no prima facie case was made.

p. 3
02

Whether irreparable loss not compensable by damages was established

Holding

No; once charged, the land became a commodity for sale and damages would suffice

Reasoning

The Court held that a charged property is a commodity for sale and any romanticism over it is unhelpful, applying Paul Muhoro Kihara and Davis Nyanjui. The 1st Respondent is a stable bank capable of paying damages if found wrong at trial. Sentimental attachment or the fact of a family home cannot bar exercise of the statutory power of sale.

p. 4
03

Balance of convenience

Holding

Tilts in favour of the 1st Respondent chargee

Reasoning

The secured loan remains unpaid and continues to escalate; restraining the sale risks the debt outstripping the value of the securities, exposing the chargee to substantial irrecoverable loss, as in Andrew M. Wanjohi v Equity Building Society.

p. 4
04

Whether mandatory orders nullifying the charge could issue interlocutorily

Holding

No; no special circumstances

Reasoning

The relief sought in prayer for nullification of the charge was mandatory and final, duplicating relief sought in the main suit. Under Kenya Breweries v Okeyo, mandatory injunctions are not normally granted interlocutorily absent special circumstances, a simple and summary case, or a defendant stealing a march. None existed here.

p. 4

Legal principles established

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  • In such cases the alleged errant spouse against whom failure to procure spousal consent is alleged should be joined as a necessary and proper party
  • Once land is charged as security it becomes a commodity for sale and its loss is compensable in damages; sentimental attachment cannot bar the chargee's statutory power of sale
  • A mandatory injunction will not normally be granted on an interlocutory application absent special circumstances

Court orders

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  1. 1.The Notice of Motion dated (seeking injunctions restraining sale of LR.No. Ruiru Kiu Block 3/434-Kahawa Sukari and LR.No.28736 House No.118 Ole Ngai Town House Bahati Ridge, Thika) is dismissed entirely
  2. 2.Costs of the application to the Defendants/Respondents

Authorities

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Legislation

  • Land ActSection 79 (spousal consent)
  • Land ActSection 2 (definition of Matrimonial Home)
  • Matrimonial ActSection 2 (definition of matrimonial home, as quoted in Esther Njeri Mwangi)

Cases cited (12)

  • Nyutu & Others vs Gatheru & Others
    (1990) KLR 554
  • Edwin Kamau Muniu vs Barclays Bank of Kenya Ltd
    Nairobi HCCC No. 1118 of 2002
  • Giella vs Cassman Brown & Co. Ltd
    1973, EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Susan Anne Karanja vs Lenana Towers Ltd
    (2014) eKLR
  • Esther Njeri Mwangi vs Equity Bank Ltd & Another
    (2017) eKLR
  • Paul Muhoro Kihara vs Barclays Bank (K) Ltd
    Milimani HCCC No.33 of 2002 (2001) 2EA 420
  • Davis Nyanjui t/a Davis Academy & Another vs National Bank of Kenya Ltd
    (2015) eKLR
  • Elizabeth Nthenya Wambua vs Philip Masila & 3 Others
    (2012) eKLR
  • Andrew M. Wanjohi vs Equity Building Society & 7 Others
  • Kenya Breweries Ltd & Ano vs Washington O. Okeyo
    Civil Appeal No.332 of 2000, 1EA 109
  • Nduati Kariuki t/a Johester Merchants vs National Bank of Kenya
    supra (as referred to in Davis Nyanjui)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land charged as security (interlocutory Notice of Motion under unspecified provisions of law)

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, "Asuntah Wamwirua Njoroge v Housing Finance Corporation Ltd & another [2018] KEELC 2805 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2805/eng@2018-06-19

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