Lorraine Wanja Kaithia v Kenya Commercial Bank [2018] KEELC 4211 (KLR)
The bottom line
#A Kenyan court blocked a bank from auctioning a borrower's land because the mandatory three-month statutory notice was not properly served.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant served the Plaintiff with the mandatory three months' statutory notice under section 90 of the Land Act
The Plaintiff was not properly served with the requisite statutory notices; the Defendant admitted an error in the address on the notifications and produced no Certificate of Posting for the ninety days' notice.
The court noted that apart from the statutory notices in annextures 'TO 2' and 'TO 3', there was no Certificate of Posting to prove service of the ninety days' statutory notice by registered post. The Defendant's Legal Officer admitted the Plaintiff's address was erroneously indicated. Given that section 90 of the Land Act is mandatory, these anomalies established defective service, meaning the statutory power of sale had not properly crystallised.
Whether the Plaintiff is entitled to a temporary injunction
Yes. The Plaintiff established a prima facie case with probability of success, would suffer irreparable harm not compensable by damages, and the balance of convenience favoured her.
Applying the Giella v Cassman Brown principles, the court found that although the Plaintiff did not deny indebtedness, defective service of the statutory notices gave her a prima facie case with probability of success. Since the notices were not duly served, denial of the injunction would cause irreparable harm. The balance of convenience tilted in her favour because the statutory power of sale had not crystallised, justifying the interim restraint pending fresh notices.
Legal principles established
#- The exercise of a chargee's statutory power of sale is serious business and the provisions of section 90 of the Land Act are mandatory and must be meticulously adhered to.
- A prima facie case in a civil application is a case which, on the material presented, discloses a right apparently infringed so as to call for an explanation or rebuttal from the opposite party.
Court orders
#- 1.A temporary injunction be and is hereby issued against the Defendant, its servants, agents or assigns from advertising for sale, disposing of or selling by public auction or private treaty or in any way dealing with land parcel number NGONG/NGONG/10638 pending the issuance of fresh mandatory notices in accordance with section 90 of the Land Act.
- 2.Costs will be in the cause.
- Jurisdiction invoked
- Order 40 rules 2(1) and Order 51 rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and the inherent power of the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lorraine Wanja Kaithia v Kenya Commercial Bank [2018] KEELC 4211 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 15th August, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4211/eng@2018-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.