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ELCAllowedNot stated in the judgment· [2018] KEELC 4848 (KLR)

Abdullatif Ahmed Talib & 2 others v Fidelity Commercial Bank Ltd [2018] KEELC 4848 (KLR)

High Court of Kenya
18 January 2018
EOE. O. Obaga
1,418 words in judgment
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The bottom line

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The High Court stopped Fidelity Commercial Bank from auctioning a Nairobi family property because serious questions about the loan charge documents could only be resolved at a full trial.

What this practically means

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Executive summary

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This ruling by E. O. Obaga J of the High Court at Nairobi determined three consolidated interlocutory applications seeking injunctions to restrain Fidelity Commercial Bank Limited from exercising its statutory power of sale over LR No. 209/5026, Nairobi, a property registered in the names of seven family members as joint tenants. The bank contended it had advanced monies to Business Travelers Limited secured by a charge over the property executed before advocate John M. Makau. Abdullatif Ahmed Talib denied being a director of the borrower or appearing before the advocate, and questioned the three-year delay between execution of the charge in January 2009 and its registration in July 2012. Omar Ahmed Talib, though a director of the borrower, denied knowledge of the loan or executing any documents, reporting the matter to the Directorate of Criminal Investigations; the bank later asked him to replace the contested security. Husna Ahmed Talib said she was out of the country in Saudi Arabia from 2005 to 2014 when the charge was allegedly executed. The bank alleged conspiracy, material non-disclosure, and that the joint tenants could not sue in isolation. Applying Giella v Cassman Brown, the court found the anomalies in the charge documentation and the bank's failure to rebut the allegations in affidavit evidence disclosed a prima facie case fit for trial. An injunction was granted restraining the sale until hearing and determination of the suit, with costs in the cause.

Key legal issues

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01

Whether the applicants demonstrated a prima facie case with probability of success to justify an interlocutory injunction against the exercise of the statutory power of sale

Holding

The applicants established a prima facie case requiring the respondent to explain anomalies in the charge at a full trial, justifying an injunction until the hearing and determination of the suit

Reasoning

The applicants contended they never executed the charge before the named advocate, one applicant being out of the country when it was allegedly executed. The charge was executed in 2009 but only presented for registration in 2012. The respondent did not rebut the allegations by affidavit, and instead attempted to substitute the questioned security. These unresolved issues could only be tried at a full hearing.

p. 3

Legal principles established

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  • The principles for grant of a temporary injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience if in doubt.

Court orders

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  1. 1.An injunction restraining the defendant, Fidelity Commercial Bank Limited, through its advocates, agents, servants, auctioneers or otherwise, from selling by public auction, private treaty, or otherwise dealing in property known as LR No. 209/5026 (IR No. 15418) situated in the County of Nairobi until the hearing and determination of the suit
  2. 2.Costs of the applications shall be costs in the cause
Jurisdiction invoked
Original civil jurisdiction (injunctive relief over charged land); no specific provision invoked in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Abdullatif Ahmed Talib & 2 others v Fidelity Commercial Bank Ltd [2018] KEELC 4848 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4848/eng@2018-01-18

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