Zipporah Wanjiku Kariuki v Progressive Credit Ltd & 2 others [2018] KEELC 3572 (KLR)
The bottom line
#A Kenyan court stopped a bank auction because the bank skipped legally required notices before selling a family home.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case
Established - Applicant only borrowed a friendly loan and never sold the property; the transfer to the 3rd Defendant is contested and unresolved
The court noted the Applicant borrowed a friendly loan secured by the title deed and did not sell the property. The 3rd Defendant transferred the property to himself without controverting the fraud allegations, and the 1st Defendant failed to issue statutory notices under Sections 90(1) and 96(2) of the Land Act before exercising its power of sale. These unresolved controversies required evidence at trial, so the property should be preserved.
Irreparable loss
Established - the Applicant resides on the suit property with her family; eviction following auction would cause loss not compensable by damages
The court found the Applicant lives on the property with her family, which is her matrimonial home. If sold by public auction and she ultimately succeeds at trial, she would have been removed from her home and suffered loss that an award of damages could not adequately compensate, justifying an injunction.
Balance of convenience
The court was not in doubt, but even if applied, the balance tilts towards preserving the suit property and maintaining the status quo
The court held that even if it were in doubt, the balance of convenience favours preserving the suit property, which can only be achieved by maintaining the status quo existing before the alleged wrongful act, citing the Ojwang case.
Legal principles established
#- Failure to serve valid statutory notices before exercising the statutory power of sale is a fundamental breach, not an irregularity remediable in damages
- Grant of injunction is a judicial discretion to be exercised on principle
Court orders
#- 1.Notice of Motion dated 13th March 2017 allowed entirely in terms of prayer No.3
- 2.Injunctive orders restraining the Defendants from auctioning, selling, transferring, alienating or disposing of parcel No. Muguga/Gitaru/3112 until the case is heard and determined
- 3.Injunctive orders to last for a period of 12 months unless extended by an Order of the Court
- 4.Costs of the application to be in the cause
- 5.Parties directed to prepare the main suit for hearing expeditiously
- Jurisdiction invoked
- Inherent jurisdiction of the court to grant interlocutory injunctive relief in a land dispute under the Land Registration Act and the Land Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wambua & 3 others v Kenya Commercial Bank Limited & 2 others[2023] KEELC 18609 (KLR)10 Jul 2023
- Geoffrey Kinuthia Mungai & another v Progressive Credit Limited [2021] KEELC 3939 (KLR)[2021] KEELC 3939 (KLR)18 Mar 2021
Cite this brief
#Cite this brief
Caselaw, "Zipporah Wanjiku Kariuki v Progressive Credit Ltd & 2 others [2018] KEELC 3572 (KLR)", Case Analysis (2018). Notice of Motion dated 13th March 2017 (suit over land parcel No. Muguga/Gitaru/3112). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3572/eng@2018-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.