Ubuntu Holdings Limited v Housing Finance Company Limited [2018] KEELC 4633 (KLR)
The bottom line
#A Kenyan court refused to stop Family Bank from selling charged land because the company failed to prove fraud, serious harm, or that stopping the sale was fair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
No prima facie case established
It was not disputed that two of the Plaintiff's directors charged the suit land to secure the loan. Company Registry records showed the two directors were the legal directors at the time of taking the loan, and the Defendant conducted due diligence before disbursing. The claim that a director's resignation was forged and subject to criminal proceedings did not demonstrate a prima facie case against the Defendant.
Whether the Plaintiff would suffer irreparable harm not compensable by damages
No irreparable harm demonstrated
The Plaintiff failed to demonstrate what harm it would suffer if the charged land were sold in realization of the debt. Relying on Nguruman Ltd v Jan Bonde Nielsen, speculative injury is insufficient; the applicant bears the burden of demonstrating actual, substantial and demonstrable injury that damages cannot adequately compensate.
Where the balance of convenience lies
Balance of convenience tilts in favour of the Defendant
The Plaintiff remains indebted and the Defendant holds the suit land as security. Following Andrew M. Wanjohi v Equity Building Society, restraining the sale risks the debt outstripping the property's value, whereas the Plaintiff can be compensated if the sale is later found wrongful.
Legal principles established
#- The principles for granting a temporary injunction are those in Giella v Cassman Brown: prima facie case, irreparable injury not compensable by damages, and balance of convenience
Court orders
#- 1.The Plaintiff's Notice of Motion dated 13th March 2017 is dismissed with costs
- Jurisdiction invoked
- Order 40(1) and Order 51(1) & (13) of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ubuntu Holdings Limited v Housing Finance Company Limited [2018] KEELC 4633 (KLR)", Case Analysis (2018). ELC Civil Suit (Kajiado) – Notice of Motion dated 13th March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4633/eng@2018-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.