Mohamed Adan Bare v Aima Enterprises Limited & 3 others [2018] KEELC 4058 (KLR)
The bottom line
#A Nairobi land court refused to stop a bank auction because the owner waited too long and one property had already been sold.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with probability of success
No prima facie case was established; there was no evidence of infringement of the applicant's rights calling for an injunction
The applicant knew of the sale process as early as 2014 and of press advertisements in 2015 but took no action until September 2016. He had earlier withdrawn ELC 868 of 2016 seeking similar orders and had another suit pending before the Commercial and Admiralty Division. Rival forensic reports could not be resolved at interlocutory stage. The statutory notices were served at the address in the charge document.
Whether an injunction could issue in respect of the already-sold property LR No. 209/18512
No; the property had been sold at auction and registered in the interested party's name before the application was filed, and the remedy lies in damages
The property was sold on 7th September 2016, before the suit was filed, and registered in the interested party's name on 11th October 2016. Following the Court of Appeal in Priscillah K Robought Grant v Kenya Commercial Bank, an injunction cannot restrain what has already happened; the applicant's remedy is damages if he proves the sale was irregular.
Whether damages would be an adequate remedy and where the balance of convenience lies
The properties are capable of valuation and the third respondent can compensate; the balance of convenience tilts in favour of the third respondent as chargee
The court reasoned that the properties can be valued and the third respondent can compensate if it transpired that the takeover and sale were irregular. The sold property was charged to the third respondent, so the balance of convenience favoured the chargees over the applicant.
Legal principles established
#- No injunction can issue to restrain an act that has already occurred; the party's remedy lies in damages if the sale is later shown to be irregular
- In considering a prima facie case the court must not hold a mini trial or closely examine the merits
Court orders
#- 1.The applicant's Notice of Motion dated 20th September 2016 is dismissed
- 2.Costs of the application awarded to the 2nd and 3rd respondents
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the charged land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Adan Bare v Aima Enterprises Limited & 3 others [2018] KEELC 4058 (KLR)", Case Analysis (2018). ELC Suit re LR No. 209/11095/95 (Notice of Motion dated 20th September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4058/eng@2018-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.