Kairu Ng'anga v Spire Bank Limited & 2 others [2018] KEELC 2838 (KLR)
The bottom line
#A Kajiado court allowed a bank to auction a family's land because the owner admitted owing part of the loan and received the required statutory notices by registered mail.
What this practically means
#Executive summary
#Key legal issues
#Whether the statutory notices under sections 90 and 96 of the Land Act were duly served on the Plaintiff before exercise of the statutory power of sale
The court found that all requisite notices were served by registered mail to the addresses on the charge document, as proven by the annexures to the replying affidavit
The court examined the annexures 'PB5' to 'PB13' to the 1st Defendant's replying affidavit and found notices issued under sections 90 and 96 of the Land Act were posted by registered mail to the Plaintiff and 3rd Defendant, whose address on the charge document was the same as that to which the notices were sent. It held service by registered mail is valid under Kenyan law, rejecting the Indian authority relied on by the Plaintiff, and noted the Plaintiff and 3rd Defendant are father and son and had received several notices before advertisement for sale.
Whether the Plaintiff established a prima facie case with a probability of success warranting an interlocutory injunction under the Giella v Cassman Brown principles
No prima facie case was established; the injunction was refused
Applying Giella v Cassman Brown, the court found the Plaintiff admitted the loan and the outstanding balance, and did not dispute default. Since part of the amount claimed was admitted, the chargee could not be restrained. The Plaintiff also failed to demonstrate any irreparable loss if the suit land were sold, and no balance of convenience arose in his favour given the admitted debt accruing interest.
Whether the replying affidavit was defective for want of written authority for the deponent to swear it, and want of authority to plead
The objection was dismissed as an undue technicality
The court held the Plaintiff was relying on technicalities. Citing section 19(1) of the Environment and Land Court Act and Article 159(2)(d) of the Constitution, it held justice must be administered without undue regard to procedural technicalities and the court is not strictly bound by rules of evidence. It agreed with the authority of Republic v District Land Registrar, Uasin Gishu that justice is not dependent on rules of technical procedure, and allowed the affidavit to stand.
Whether proceedings taken in the name of the former name (Equatorial Commercial Bank) were a nullity
The court accepted the 1st Defendant's explanation of the change of name to Spire Bank; no finding of mis-joinder or non-suit was made
Counsel for the 1st Defendant explained the change of name from Equatorial Commercial Bank to Spire Bank vide Gazette Notice No. 4624 and Certificate of Change of Name No. 14 of 2000, and cited section 66(2)(3) of the Companies Act 2015 permitting continuation of proceedings under the new name. The judgment does not record any contrary finding on this issue.
Legal principles established
#- Service of statutory notices under the Land Act by registered mail is an accepted and valid mode of service under Kenyan law
- Where part of the amount claimed under a charge is admitted or proved to be due, the chargee cannot be restrained by an injunction
- Courts should not determine suits on procedural technicalities, and lack of a written authority annexed to a deponent's affidavit is a technicality to be disregarded
- A chargee may exercise its statutory power of sale where the chargor remains in default after expiry of the time for rectification, provided the requisite notices under sections 90 and 96 of the Land Act were served
Court orders
#- 1.The Plaintiff's Notice of Motion dated the 6th March, 2017 is dismissed
- 2.Costs of the application are awarded to the Defendants
- Jurisdiction invoked
- Statutory jurisdiction of the Environment and Land Court under the Environment and Land Court Act, with reference to section 19(1) of that Act and Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kairu Ng'anga v Spire Bank Limited & 2 others [2018] KEELC 2838 (KLR)", Case Analysis (2017). Notice of Motion dated 6th March, 2017 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2838/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.