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ELCDismissedNotice of Motion dated 8th January 2018 (suit over LR.No.13537/22 Thika Municipality)· [2018] KEELC 3805 (KLR)

Angaza Real Estate Limited v Consolidated Bank Limited & another [2018] KEELC 3805 (KLR)

Environment and Land Court
13 April 2018
3,273 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed Family Bank to proceed with auctioning a Juja property because the borrower defaulted and could not prove the bank failed to serve proper notices.

What this practically means

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Executive summary

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By a Notice of Motion dated 8th January 2018, the Plaintiff sought an interlocutory injunction restraining the 1st Defendant bank from alienating, selling or interfering with LR.No.13537/22 Thika Municipality, or alternatively an extension of time to redeem, suspension of the statutory power of sale, and revocation of the 2nd Defendant's sale notice. The Plaintiff, which had borrowed Kshs.48,000,000/= from the Bank in August 2015 secured by a first legal charge over the suit property to purchase a commercial building in Juja, claimed it had serviced the loan until financial difficulties arose and alleged the Bank never issued a written statutory notice and acted in bad faith. The Bank, through a Replying Affidavit of its debt recovery officer, Daniel Kimaiyu, asserted the loan was disbursed, the Plaintiff defaulted, statutory notices were served on 11th July 2017 and later a 40-day notice, and the auctioneer was instructed on expiry. Applying the Giella v Cassman Brown criteria, the Court found the statutory notices were served by registered post on the directors at the address in the charge document and were not returned; the Plaintiff acknowledged arrears but offered no repayment proposals and failed the clean-hands doctrine, so no prima facie case was established. On irreparable loss, the Court held that a charged property becomes a commodity for sale on default and any loss is calculable in damages, and the balance of convenience favoured the Bank as the debt escalated. The application was dismissed entirely with costs to the 1st Respondent, and the interim orders issued on 8th February 2018 were discharged and/or vacated.

Key legal issues

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01

Prima facie case with probability of success

Holding

The Plaintiff failed to establish a prima facie case; it was served with statutory notices and remained in default

Reasoning

The Court found the statutory demand notices were served by registered post on the directors at the address in the charge document and were not returned to sender. The Plaintiff acknowledged arrears but offered no proposals to clear them, instead blaming the Bank for refusing a further loan. Seeking equitable relief, it failed the clean-hands doctrine and did not demonstrate infringement of a right.

p. 6
02

Irreparable loss not compensable by damages

Holding

No irreparable loss shown; the charged property is realizable security and loss is calculable

Reasoning

Relying on the Wanjohi and Olympic Sport House authorities, the Court held that by offering the property as security the chargor made it a commodity for sale on default, and any loss on sale could be assessed at market value. The balance of convenience also favoured the Bank, as the debt continued to escalate and stopping the sale would deepen its loss.

p. 6

Legal principles established

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  • Whether or not to grant an injunction is a judicial discretion to be exercised on legal principles
  • A party seeking an equitable remedy must come to court with clean hands
  • By charging property as security, the chargor equates it to a commodity the chargee may dispose of, and loss on sale is calculable in damages

Court orders

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  1. 1.The Notice of Motion application dated 8th January 2018 is dismissed entirely with costs to the 1st Respondent
  2. 2.The interim orders issued on 8th February 2018 are discharged and/or vacated

Authorities

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Legislation

  • Land ActSection 90(1)
  • Land ActSection 96(1)
  • Land ActSection 104(2)

Cases cited (7)

  • Nyutu & Others Vs Gatheru & Others
    (1990) KLR 554
  • Edwin Kamau Muniu Vs Barclays Bank of Kenya Ltd
    Nairobi HCCC No.1118 of 2002
  • Giella Vs Cassman Brown & Company Ltd
    1973 E.A 358
  • Mrao Ltd Vs First American Bank Ltd & 2 others
    (2003) eKLR 125
  • Jane Achieng Onyango Vs Giro Commercial Bank
    Kisumu HCCC No.339 of 1999
  • Olympic Sport House Ltd Vs School Equipment Centre Ltd
    HCC No. 190 of 2012
  • Andrew M. Wanjohi Vs Equity Building Society & 7 Others
    (2006) eKLR
Jurisdiction invoked
Inherent jurisdiction and provisions of the Land Act, 2012 (Sections 90, 96, 104(2)) invoked for injunctive and equitable relief

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, "Angaza Real Estate Limited v Consolidated Bank Limited & another [2018] KEELC 3805 (KLR)", Case Analysis (2018). Notice of Motion dated 8th January 2018 (suit over LR.No.13537/22 Thika Municipality). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3805/eng@2018-04-13

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