Heshimart Enterprises v Rafiki Microfinance Bank Limited & another [2018] KEELC 3306 (KLR)
The bottom line
#A Kenyan landowner facing auction kept the status quo because the bank sold without valuation, but must prove real harm to win full relief.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
The plaintiff demonstrated a prima facie case with a likelihood of success on four grounds: absence of a valuation report contrary to section 97(2) of the Land Act; the charge document not being sealed by the company seal; questions around service of the statutory notice; and absence of resolutions authorising the company guarantee
The court weighed the applicant's material against the chargee's replying affidavit. It found triable issues arising from procedural irregularities in the charge and in the exercise of the statutory power of sale, holding that these issues can only be resolved at trial, which sufficed to establish a prima facie case.
Irreparable harm
The plaintiff failed to demonstrate irreparable harm; mere assertion is insufficient
The court held that the plaintiff neither in the affidavit nor in submissions identified the nature of the irreparable harm likely to be suffered. The equitable remedy of injunction requires evidence of harm that damages cannot compensate; a bare statement of loss does not meet the threshold.
Balance of convenience
The balance of convenience tilts towards maintaining the status quo
Although irreparable harm was not demonstrated, the court found the plaintiff would be more inconvenienced if the property were sold without a valuation. This grounded the order maintaining the status quo pending the hearing and determination of the main suit.
Legal principles established
#- A party seeking an injunction must demonstrate by evidence, not merely assert, irreparable harm
- Sale of charged land without a valuation offends section 97(2) of the Land Act and supports a prima facie case for interlocutory relief
Court orders
#- 1.Status quo to be maintained pending the hearing and determination of the main suit, as the balance of convenience tilts towards maintaining the status quo
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the charged land parcel Sergoit/Koiwaptai Block 11/371; application brought under Section 104(2) as read with Section 90 of the Land Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Heshimart Enterprises v Rafiki Microfinance Bank Limited & another [2018] KEELC 3306 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3306/eng@2018-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.