Stephen Kipkemboi Ng’eno t/a Pacific Edge Company Ltd v Transnational Bank Limited & 3 others [2018] KEELC 3914 (KLR)
The bottom line
#The court refused to stop a bank's auction sale because the borrower offered no proof his statutory notices were wrongly served, the price was fair, and his wife consented to the charge.
What this practically means
#Executive summary
#Key legal issues
#Service of the statutory notice and notification of sale
No prima facie case established; the plaintiff himself supplied the postal addresses in the letter of offer, charge and title deeds, and did not challenge the process server's affidavit of service
The plaintiff signed both the letter of offer and charge giving the contested postal addresses, and used the same address in his title deeds issued three years before the charge. He produced no evidence identifying the owners of the addresses and did not seek to cross-examine or summon the process server Maina Mwangi, whose affidavit of service gave a detailed account of service.
Sale at undervalue
Not established; a valuation within six months of the sale put the forced sale value at Kshs 9,000,000/-, the exact price realised at auction
The plaintiff made bare allegations without proof. The 1st defendant produced a valuation report dated 9th March 2016 placing market value at Kshs 12,000,000/- and forced sale value at Kshs 9,000,000/-. The plaintiff adduced no evidence that the properties could have fetched a higher price.
Matrimonial property and spousal consent to the charge
The claim failed; the plaintiff's wife Linah Yego consented to the charging of the suit properties in the letter of offer
The court examined the letter of offer dated 23rd June 2014 and found at page 11 that the plaintiff's wife consented to the suit properties being charged to secure the loan, defeating the plaintiff's contention that the charge was invalid for want of spousal consent.
Irreparable injury and balance of convenience
Damages would adequately compensate the plaintiff, who had already received over Kshs 6,000,000/- of the sale proceeds; in any event the balance of convenience favours the defendants
The suit properties are capable of valuation and the plaintiff compensable in damages. Unchallenged evidence showed the plaintiff withdrew over Kshs 6,000,000/- being the balance of the purchase price after the 1st defendant recovered the loan. It would be unconscionable for the plaintiff to keep both the money and the property.
Legal principles established
#- An applicant for a temporary injunction must establish a prima facie case with a probability of success and irreparable injury not compensable in damages, failing which the balance of convenience may be considered
- Where service of process is disputed, there is a qualified presumption in favour of the process server and the burden lies on the party questioning the service to show the return is incorrect
- Where affidavits on service conflict, the deponents should be examined on oath to establish the truth
Court orders
#- 1.The plaintiff's Notice of Motion dated 7th November 2016 as amended on 21st March 2017 seeking a temporary injunction is dismissed
- 2.Costs of the application awarded to the defendants
- Jurisdiction invoked
- Inherent jurisdiction and Order 40 Civil Procedure Rules on temporary injunctions (not expressly cited; court exercised discretion as first-instance trial court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Kipkemboi Ng’eno t/a Pacific Edge Company Ltd v Transnational Bank Limited & 3 others [2018] KEELC 3914 (KLR)", Case Analysis (2018). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3914/eng@2018-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.