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ELCAllowedNot stated in judgment (Notice of Motion dated 30th August, 2017)· [2018] KEELC 3481 (KLR)

Simon Pasua ole Kaanto & another v Family Bank Limited [2018] KEELC 3481 (KLR)

Environment and Land Court
25 April 2018
3,351 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court stopped a bank auction because the bank failed to serve the landowner's spouse and undervalued the property.

What this practically means

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Executive summary

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The Plaintiffs moved the court by Notice of Motion dated 30th August, 2017 under Order 40 rules 1 & 2 of the Civil Procedure Rules and sections 90, 96, 97, 103 and 104 of the Land Act, seeking a temporary injunction to restrain the Defendant bank from exercising its statutory power of sale over land parcel KAJIADO/LORNGUSUA/85, the 1st Plaintiff's land charged to secure a Kshs. 3 million loan to the 2nd Plaintiff, advertised for auction on 5th September, 2017. The Plaintiffs admitted default but contended they were not served with the statutory notices, that the consenting spouse was not served with the Notice to Sell, and that no proper forced sale valuation was done. The Defendant asserted all notices were served, a valuation was undertaken, and that the application failed the Cassman Brown test. The court framed three issues: service of statutory notices, service on the consenting spouse, and entitlement to injunction. It found the Chargor and Borrower were served but the spouse who gave spousal consent was not served as required by section 96(3)(c) of the Land Act, and the Chargor was not properly served with the Notification of Sale. It also found glaring discrepancies between the two valuations commissioned by the Defendant, showing failure to obtain the best price under section 97. Applying Giella v Cassman Brown, Mrao and Nguruman, the court held the Plaintiffs established a prima facie case with probability of success, would suffer irreparable harm, and that the balance of convenience favoured them. The application was allowed with costs in the cause.

Key legal issues

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01

Whether statutory notices under sections 90 and 96 of the Land Act were properly served

Holding

The Plaintiffs (Chargor and Borrower) were served with the statutory notices, but the Chargor was not properly served with the Auctioneer's Notification of Sale and the spouse who gave consent was not served with the Notice to Sell.

Reasoning

The Defendant annexed Certificates of Posting showing the notices were sent to the address in the Charge Document. However, section 96(3)(c) requires service of the notice to sell on the consenting spouse; the evidence showed service on Mrs. Anne Naiserian Otuma Kaanto, who was wrongly indicated as owner, not on Nantei Ene Pasua Kaanto, the spouse who actually granted spousal consent. The notices are mandatory and the Defendant cannot skirt around them.

p. 4
02

Whether the Defendant complied with the duty to obtain the best price reasonably obtainable (section 97 of the Land Act)

Holding

The glaring discrepancies between the two valuation reports commissioned by the Defendant raise triable issues; the forced sale valuation was too low and the best price was not obtained.

Reasoning

The Afriland Valuers report of 27th October 2015 gave an open market value of Kshs. 60 million and forced sale value of Kshs. 45 million, while Hallmark Valuers' report of 19th May 2017 gave Kshs. 48 million market value and Kshs. 36 million forced sale value. Both were commissioned by the Defendant, yet values fell over two years despite judicial notice that property markets in Kenya, including Kajiado, appreciate steadily. The Defendant did not controvert the Plaintiffs' allegations on valuation.

p. 5
03

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

Holding

Despite admitted indebtedness and due service of statutory notices, the discrepancies in valuation and defects in service of the Notice to Sell established a prima facie case with probability of success.

Reasoning

Applying the Giella v Cassman Brown principles and Mrao Ltd v First American Bank's definition of a prima facie case, the court found infringement of the Plaintiffs' rights through failure to properly value the land and failure to serve the consenting spouse. These raise triable issues determinable only after a full hearing, warranting explanation or rebuttal from the Defendant.

p. 5
04

Irreparable harm and balance of convenience

Holding

The Plaintiffs demonstrated actual harm in losing family land worth far above the debt, not compensable by damages, and the balance of convenience tilts in their favour.

Reasoning

Applying Nguruman Ltd v Jan Bonde Nielsen, the court found the alleged injuries were not speculative: the suit land, valued by the Plaintiffs at Kshs. 98 million and housing the 1st Plaintiff's family home, faced sale for a debt of about Kshs. 3.7 million based on an undervalued forced sale price. The Defendant had infringed the Plaintiffs' rights by improper valuation and defective service of notices.

p. 5

Legal principles established

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  • Section 96(3)(c) of the Land Act mandatorily requires a copy of the notice to sell to be served on the spouse of the chargor who gave consent to the charge.
  • A chargee must obtain the best price reasonably obtainable and undertake a forced sale valuation before exercising the right of sale; glaring discrepancies in valuations betray a failure of this duty.
  • A notice addressed to a wrong address is no notice at all.

Court orders

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  1. 1.The Plaintiffs' Notice of Motion dated 30th August, 2017 is found merited and allowed (temporary injunction pending the outcome of the suit granted).
  2. 2.Costs will be in the cause.

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1 & 2
  • Land ActSections 90(1), 90(2)(b), 90(3), 96(2), 96(3)(c), 97(1), 97(2), 103 & 104

Cases cited (13)

  • Julius Kipleny Kolil and Another Vs Kenya Commercial Bank and 2 others
    (2013) eKLR
  • Zadarack Oyaro Achoki Vs Consolidated Bank of Kenya Limited
    (2013) eKLR
  • Peter Atandi Nyabuti Vs Mellen Kemunto Phillip
    (2016) eKLR
  • Njoroge wa Kairo Vs Housing Finance Co. of Kenya Limited
    (2006) eKLR
  • Giella Vs Cassman Brown Co. Ltd
    (1973) EA 358
  • Mrao Limited Vs First America Bank Limited
    (2003) eKLR / (2003) KLR 125
  • Showind Industries Vs Guardian Bank Limited & Another
    (2002) 1EA. 284
  • Julius Mainye Anyega Vs Eco Bank Limited
    (2014) eKLR
  • Maltex Commercial Supplies Limited & Another Vs EcoBank Limited (in Liquidation)
    HCCC Number 82 of 2006
  • Jimmy Wafula Simiyu Vs Fidelity Bank Ltd
    (2014) eKLR
  • Bii Vs Commercial Bank Limited
    (2001) KLR (458)
  • Joseph Otura Allaii Vs China Overseas Engineering Group
    (2013) eKLR
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
Jurisdiction invoked
Order 40 rules 1 & 2 of the Civil Procedure Rules and Sections 90(1), 90(2)(b), 96(2), 96(3)(c), 97(2), 103 & 104 of the Land Act 2012

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, "Simon Pasua ole Kaanto & another v Family Bank Limited [2018] KEELC 3481 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 30th August, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3481/eng@2018-04-25

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