Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed(suit contemporaneously filed with Notice of Motion dated 31/1/2017 - number not stated in judgment)· [2018] KEELC 4178 (KLR)

Lawrence Ojiambo Mugeni v Family Bank Ltd [2018] KEELC 4178 (KLR)

Environment and Land Court
14 March 2018
999 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court allowed Family Bank to proceed with selling a borrower's land because he proved neither that he had paid nor that the bank's claim was wrong.

What this practically means

#

Executive summary

#
The Plaintiff, Lawrence Ojiambo Mugeni, moved the court by Notice of Motion dated 31/1/2017 under Order 40 Rules 1, 3 and 4 of the Civil Procedure Rules and Sections 3A and 1A of the Civil Procedure Act, seeking a temporary injunction pending the hearing of his suit restraining Family Bank Ltd from advertising for sale by public auction or private treaty land parcel No. BUKHAYO/MUNDIKA/3155, offered as security for a KES 25,000,000 loan. Prayers 1 and 2 had been dealt with earlier; the court was to consider prayers 3 and 4. The Plaintiff alleged he had been servicing the loan and that no statutory notice of sale had been served, and that he would suffer irreparable damage if restrained orders were not issued. The Respondent replied that the Applicant had defaulted, that all requisite notices were issued and annexed, and later availed a statement of the loan account evidencing default. The application was canvassed by written submissions, filed only by the Respondent. The court found the account statement clearly showed default and inferred from registered-post dispatch, with no returns to sender, that the notices were received. Applying the Giella v Cassman Brown principles and the law in Mrao Ltd v First American Bank, the court held that a defaulting mortgagor cannot obtain injunctive relief unless he pays the sum owed into court or shows the mortgagee's claim is excessive. The Applicant had done neither, and his failure to respond to the replying affidavit or file submissions was a serious omission. The application was found unmeritorious and dismissed with costs to the Respondent.

Key legal issues

#
01

Whether failure to serve statutory notice of sale was established

Holding

The court found the notices were served by registered post to the Applicant's given address and inferred receipt

Reasoning

The Respondent annexed the requisite notices (LAO-4, LAO-5 and LAO-6) to its replying affidavit and showed they were sent by registered post to the address the Applicant gave when borrowing. Nothing suggested the notices were returned to sender, so the court drew the inference that the Applicant received them, undermining the premise of the application.

p. 2
02

Whether the Applicant was in default of the loan

Holding

The statement of account availed by the Respondent showed the Applicant in default, contradicting his claim of servicing the loan

Reasoning

The Applicant pleaded he had been servicing the loan, but the Respondent's supplementary affidavit availed a statement of the loan account (LAO-1) demonstrating default and indebtedness. The Applicant did not file submissions or address these issues, and the court treated his averments as hollow or misleading.

p. 2
03

Whether the Applicant met the threshold for a temporary injunction

Holding

The Applicant failed to establish a prima facie case, irreparable harm or balance of convenience, so injunctive relief was refused

Reasoning

Applying the Giella v Cassman Brown principles and the Halsbury law quoted in Mrao Ltd v First American Bank, the court held that a defaulting mortgagor cannot obtain an injunction unless he pays the amount owed into court or demonstrates the mortgagee's claim is excessive. The Applicant did neither, and his failure to respond to the replying affidavit compounded his position.

p. 2

Legal principles established

#
  • An injunction to restrain a mortgagee's sale will not issue merely because the amount due is disputed, a redemption action has been commenced, or the mortgagor objects to the manner of sale; the mortgagor must pay the sum owed into court or demonstrate that the mortgagee's claim is excessive
  • The principles for granting a temporary injunction are establishment of a prima facie case with a probability of success, irreparable harm not compensable by damages, and, in doubt, the balance of convenience

Court orders

#
  1. 1.The Notice of Motion dated 31/1/2017 (prayers 3 and 4) is dismissed
  2. 2.Costs of the application awarded to the Respondent
Jurisdiction invoked
Order 40 Rules 1, 3 and 4 of the Civil Procedure Rules and Sections 3A and 1A of the Civil Procedure Act (cap 21)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lawrence Ojiambo Mugeni v Family Bank Ltd [2018] KEELC 4178 (KLR)", Case Analysis (2018). (suit contemporaneously filed with Notice of Motion dated 31/1/2017 - number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4178/eng@2018-03-14

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