Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment· [2018] KEELC 4034 (KLR)

Sammy Kipcho Choge v Agricultural Finance Corporation [2018] KEELC 4034 (KLR)

Environment and Land Court
2 March 2018
AOA. Ombwayo
1,785 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court stopped a bank from auctioning a family farm because the bank could not prove it properly delivered the statutory notice before selling.

What this practically means

#

Executive summary

#
The plaintiff, registered proprietor of land parcel Nandi/Kapsengere/1063 (1.55 Ha), moved the court by notice of motion seeking a temporary injunction to restrain the Agricultural Finance Corporation and its agents, M/s Keysian Auctioneers and Court Brokers, from selling, alienating or otherwise interfering with the property pending trial. The plaintiff had borrowed two facilities from the defendant (Kshs.1,500,000 and Kshs.8,928,300), secured by charges over the parcel, and defaulted. The defendant issued a statutory notice dated 21st May 2009 and instructed auctioneers, who advertised the property for sale by public auction set for 30th November 2016. The plaintiff protested, contending no statutory notice under Section 90 of the Land Act was served, the property was never valued, and the interest charged was exorbitant and unlawful; the property was his matrimonial home occupied by over 20 family members. The defendant, through its Legal Officer Mainga Evans, asserted the notices were served by registered post, a valuation was done by Real Appraisal Limited, and urged that the court could not rewrite the loan agreement. The court found the loans were advanced and not repaid, but doubted proof of service of the notices since no Postal Corporation receipt of registration was produced. It held the plaintiff had established a prima facie case, that sale of the matrimonial home would cause irreparable harm not compensable in damages, and that the balance of probabilities favoured maintaining the status quo. It accordingly granted a temporary injunction restraining the sale or interference with the property pending the hearing and final determination of the main suit. Judgment was delivered at Eldoret on 2nd March 2018 by A. Ombwayo J.

Key legal issues

#
01

Service of statutory notice under Section 90 of the Land Act

Holding

The plaintiff demonstrated that he was not properly notified; mere posting by registered post without proof of registration/delivery is insufficient.

Reasoning

The court examined the demand notice (ME4) and foreclosure notice (ME5) said to have been sent by registered post. It found no receipt from the Postal Corporation of Kenya showing the documents were registered items for delivery to the plaintiff. Because the respondent bore the burden of demonstrating that notice was issued, and could not, the court concluded the plaintiff was not notified, grounding a prima facie case.

p. 4
02

Irreparable harm and balance of convenience

Holding

The suit property is a matrimonial home housing the plaintiff's family; damages would not adequately compensate if sold and the family evicted, so the balance tilts toward maintaining the status quo.

Reasoning

The court accepted that the charged land comprises the matrimonial home of the plaintiff and a family of more than 20 persons. Sale and eviction would cause harm not sufficiently compensable in damages. On the balance of probabilities, the court found the balance favoured maintaining the status quo, satisfying the remaining Giella-type requirements for an interlocutory injunction.

p. 4

Legal principles established

#
  • In mortgagee realization matters, the lender must demonstrate that statutory notice was issued to the chargor; failure to do so justifies stopping the realization of security.

Court orders

#
  1. 1.Temporary injunction restraining the defendant, its servants and/or agents, in particular M/s Keysian Auctioneers and Court Brokers, from selling, alienating, appropriating, transferring, charging, leasing and/or trespassing upon land known as Nandi/Kapsengere/1063 comprising 1.55 Ha (3.83 Acres) pending the hearing and final determination of the main suit

Authorities

#

Legislation

  • Land ActSection 90
Jurisdiction invoked
Inherent jurisdiction to grant interim relief pending hearing of the main suit (not expressly cited in judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Sammy Kipcho Choge v Agricultural Finance Corporation [2018] KEELC 4034 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4034/eng@2018-03-02

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