Angaza Real Estate Limited v Consolidated Bank Limited & another [2018] KEELC 3805 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case with probability of success
The Plaintiff failed to establish a prima facie case; it was served with statutory notices and remained in default
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.
Irreparable loss not compensable by damages
No irreparable loss shown; the charged property is realizable security and loss is calculable
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 8th January 2018 is dismissed entirely with costs to the 1st Respondent
- 2.The interim orders issued on 8th February 2018 are discharged and/or vacated
- Jurisdiction invoked
- Inherent jurisdiction and provisions of the Land Act, 2012 (Sections 90, 96, 104(2)) invoked for injunctive and equitable relief
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.