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ELCDismissedNot stated in judgment· [2019] KEELC 148 (KLR)

Hannah Wambui & another v Equity Bank Limited [2019] KEELC 148 (KLR)

Environment and Land Court
18 November 2019
CYC.K. Yano
1,405 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiffs moved the court by notice of motion dated 7th October 2019 seeking an interim injunction to restrain the defendant bank and its agents, Robert Waweru Maina t/a Antique Auctions Agencies, from proceeding with a public auction of two properties: PLOT NO. MN/I/6032 (CR.19937) Shanzu, Mombasa and LR NO. KILIFI/KAWALA 'A'/KADZONZO/36, Kilifi. They argued the 45-day Redemption Notice dated 25th September 2019 was null and void for want of current valuations, relying on an order of 18th September 2019 requiring valuation before sale. The defendant opposed through grounds of opposition and a replying affidavit of James Mbuthia, showing it had instructed Acumen Valuers, given formal notice by letter dated 11th October 2019, and obtained a valuation report dated 30th October 2019. The valuer recorded that plaintiffs denied access, so a roadside inspection was done supplemented by a prior report. The court recalled its ruling of 21st March 2019, which had restrained sale of the Mombasa property only until a valuation was carried out, while permitting sale of the Kilifi property, and its ruling of 18th September 2019 dismissing a contempt application after finding the plaintiffs had frustrated valuations. The court held the plaintiffs had established no prima facie case, had obstructed the valuation process and defied court orders, and that such conduct was an abuse of process. The application was dismissed with costs to the defendant on 18th November 2019 (C.K. Yano, J).

Key legal issues

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01

Prima facie case for interim injunction

Holding

No prima facie case was established; the valuation of LR/MN/I/6032 was conducted on 29th October 2019 and the plaintiffs themselves denied the valuer access

Reasoning

The court noted that the 21st March 2019 ruling permitted the sale of the Kilifi property and allowed a forced valuation of the Mombasa property under Section 97 of the Land Act and the Auctioneers Rules. The defendant complied by instructing Acumen Valuers and giving formal notice by letter dated 11th October 2019. When the plaintiffs denied the valuer access, the valuer conducted a roadside inspection and relied on a prior valuation report. The court held the defendant's agent did the best it could in the circumstances, so the plaintiffs could not complain of lack of inspection.

p. 2
02

Abuse of court process

Holding

Plaintiffs' persistent obstruction of the valuation process and non-compliance with court orders disentitled them from equitable relief

Reasoning

The court found the plaintiffs had derailed the sale process, frustrated valuers on multiple occasions despite orders of 21st March 2019 and 18th September 2019 directing them to allow access, and then alleged lack of valuation. The court held an injunction could not issue again in their favour since litigants cannot invoke the court's discretion while defying its orders.

p. 2

Legal principles established

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  • A party who seeks the court's discretion while failing to comply with or obstructing compliance with the court's orders cannot be granted an injunction; such conduct is an abuse of process

Court orders

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  1. 1.The plaintiffs' notice of motion dated 7th October 2019 is dismissed
  2. 2.Costs of the application to the defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 and 4
  • Civil Procedure ActSections 1A, 1B and 3A
  • Land ActSection 97
Jurisdiction invoked
Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; inherent jurisdiction of the court

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, "Hannah Wambui & another v Equity Bank Limited [2019] KEELC 148 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/148/eng@2019-11-18

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