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ELCDismissedNot stated in the judgment· [2018] KEELC 3542 (KLR)

Julia Muthoni Githinji v African Banking Corporation Limited [2018] KEELC 3542 (KLR)

Environment and Land Court
20 March 2018
1,386 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Nakuru Environment and Land Court refused to stop a bank from selling charged land, holding that proper statutory notices had been issued and disputing the debt amount is not enough.

What this practically means

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Executive summary

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This is a ruling on the plaintiff's Notice of Motion dated 29th June 2017, brought under Order 40 rules 1, 2 and 3 of the Civil Procedure Rules, seeking an interlocutory injunction to restrain the defendant bank from selling, disposing of, transferring or alienating land parcel Nakuru Municipality Block 1/1201 (Langalanga) Racetrack Estate pending the hearing of the suit. The plaintiff deposed that she and her late husband obtained a loan of KShs 1,700,000 in September 2011 secured by a charge over the suit property, that she had paid KShs 2,105,006.10, and that no 90 days statutory notice or 45 days redemption notice was issued; she also contended that the defendant's demands contravened the Banking Act. The defendant, through a replying affidavit sworn by its legal officer Evalyn Gachoki, countered that the loan was restructured in May 2013, that default persisted, and that a 90 days statutory notice (18th February 2016), a 40 days Notice to Sell (21st June 2016) and a 45 days Redemption Notice and Notification of Sale were all duly issued, annexing copies with evidence of registered postage. The court applied the Giella test as sequenced in Nguruman Limited v Jan Bonde Nielsen, holding that the three conditions are sequential hurdles. It found the statutory notices were proved and uncontroverted, and that section 44A of the Banking Act only limits the amount recoverable on a non-performing loan and cannot stop the exercise of the statutory power of sale where the chargor is in default, following Shimmers Plaza Limited v National Bank of Kenya. The plaintiff was found not to have established a prima facie case with a probability of success. The Notice of Motion was dismissed with costs to the defendant on 20th March 2018.

Key legal issues

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01

Whether the statutory notices (90 days notice under section 90 of the Land Act, 45 days redemption notice and notification of sale) were issued

Holding

The notices were duly issued and sent by registered post; the plaintiff adduced no evidence to counter the sworn statements and annexures (EG4 and EG6) of the defendant

Reasoning

The defendant's replying affidavit annexed a section 90 Land Act notice (EG4) and a 45 days Redemption Notice and Notification of Sale (EG6), with evidence of postage. The notices were sent by registered post to the plaintiff's postal address. There was no countering evidence from the plaintiff, so the court was satisfied the notices required by section 90 of the Land Act and rule 15(d) of the Auctioneers Rules were issued.

p. 2
02

Whether section 44A of the Banking Act bars sale of the charged property

Holding

No. Section 44A only caps the recoverable amount on a non-performing loan and cannot stop the exercise of the statutory power of sale where the chargor is in default

Reasoning

The court reproduced section 44A and held its impact is limited to capping recovery (principal, interest not exceeding principal, and recovery expenses) on non-performing loans. It does not operate as a bar to the statutory power of sale. Relying on Shimmers Plaza, a dispute over the amount owing is not a ground for an injunction against sale.

p. 2
03

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

Holding

No; the application was therefore dismissed at the first Giella stage without considering the other limbs

Reasoning

Applying Giella as sequenced in Nguruman, the court found the plaintiff had not established a prima facie case with probability of success, since the statutory notices were proved and the alleged Banking Act violation did not avail her. The remaining limbs (adequacy of damages, balance of convenience) did not require consideration.

p. 2

Legal principles established

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  • All three Giella conditions are separate, distinct and logical hurdles to be surmounted sequentially; if no prima facie case is established, irreparable injury and balance of convenience need no consideration
  • Section 44A of the Banking Act only limits the amount recoverable on a non-performing loan; it does not stop the exercise of the statutory power of sale
  • A dispute on the exact amount payable under a mortgage is not a ground to restrain the exercise of the mortgagee's power of sale

Court orders

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  1. 1.Notice of Motion dated 29th June 2017 dismissed
  2. 2.Costs of the application awarded to the defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2 and 3
  • Banking ActSection 44A
  • Land ActSection 90
  • Auctioneers RulesRule 15(d)

Cases cited (5)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2013] eKLR
  • J.L. Lavuna & Others Civil Servants Housing Co. Ltd & Another
    CA Nai 14/95
  • Joseph Okoth Waudi vs National Bank of Kenya
    CA 77/2004 [2006] eKLR
Jurisdiction invoked
Civil Procedure Rules, Order 40 rules 1, 2 and 3 (inherent interlocutory injunction jurisdiction); Land Act section 90; Banking Act section 44A considered

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, "Julia Muthoni Githinji v African Banking Corporation Limited [2018] KEELC 3542 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3542/eng@2018-03-20

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