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ELCDismissedNotice of Motion dated 14th November 2018 (suit over Title Number Frère Town/Block I/MN/19)· [2019] KEELC 1084 (KLR)

Andrew Katan Mwaeba v Equity Bank Kenya Limited & 3 others [2019] KEELC 1084 (KLR)

Environment and Land Court
2 October 2019
2,386 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court refused to stop a microfinance bank's completed auction sale because the borrower admitted the debt and couldn't prove the sale broke the law.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's Notice of Motion dated 14th November 2018 seeking temporary injunctions restraining the 2nd Defendant from disturbing his occupation of Title Number Frère Town/Block I/MN/19 and restraining the 4th Defendant from registering or transferring the property to the 2nd Defendant following its sale by public auction at the behest of the 1st Defendant, a microfinance bank. The plaintiff, a defaulting chargor owing over Kshs.15 million, alleged the sale was marred by irregularity, that the property worth over Kshs.25 million was sold for Kshs.8 million, and that registry records were falsified. The 1st Defendant opposed, asserting the property sold for Kshs.11 million after proper valuation, and raised a preliminary objection on res judicata based on prior suits. The court framed the key question as whether the chargee complied with the law, particularly valuation requirements, before exercising its statutory power of sale. Applying Giella -v- Cassman Brown, the court held the plaintiff, having admitted indebtedness and receipt of notices, failed to demonstrate a prima facie case, irreparable injury not compensable in damages, or balance of convenience in his favour. The court found the valuation of 28th March 2017 fell within the 12-month period before the notified sale date of 20th December 2017, and noted unexplained discrepancies in the plaintiff's valuation figures. The application was dismissed with costs.

Key legal issues

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01

Whether the plaintiff met the Giella -v- Cassman Brown threshold for an interlocutory injunction

Holding

The plaintiff failed to establish a prima facie case, irreparable injury or balance of convenience in his favour

Reasoning

The plaintiff admitted the loan and default, and the property was sold under the terms of the charge and registered in the 2nd Defendant's name. Any loss arising from the sale is compensable by damages, and the balance of convenience favours the chargee recovering its monies. Previous proceedings also existed between the parties.

p. 3
02

Whether the 1st Defendant complied with valuation requirements before exercising the statutory power of sale

Holding

On the evidence, the valuation of 28th March 2017 was within 12 months of the notified sale date of 20th December 2017, so no breach was demonstrated

Reasoning

The plaintiff did not provide evidence that the property was sold more than 12 months after the valuation. Discrepancies between the pleaded market value of Kshs.25,000,000 and the attached valuation of Kshs.30,000,000 were unexplained, and the sale price was shown to be Kshs.11,000,000 rather than Kshs.8,000,000.

p. 3
03

Whether res judicata could be raised by way of preliminary objection

Holding

Not decided on the merits; the court only noted previous proceedings in the matter in reaching its conclusion

Reasoning

The plaintiff submitted, citing several authorities, that a plea of res judicata requires interrogation of pleadings and is unsuitable for a preliminary objection. The court did not make a finding on the plea, instead disposing of the application on the injunction threshold.

p. 3

Legal principles established

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  • Under Section 97 of the Land Act, a chargee owes a duty of care to a chargor when exercising the statutory power of sale, failing which it is liable for breach of duty
  • A chargee cannot rely on a valuation report more than 12 months old at the time of sale, per Rule 11(b)(x) of the Auctioneers Rules
  • The Giella -v- Cassman Brown test governs the grant of interlocutory injunctions: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience

Court orders

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  1. 1.The Notice of Motion dated 14th November 2018 is dismissed
  2. 2.Costs of the application to the defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3, 3A, 7
  • Civil Procedure RulesOrder 40 Rules 1, 2; Order 51 Rule 1
  • Land ActSections 79, 96, 97, 97(1), 98, 99(2) & (5)
  • Land Registration ActSection 58
  • Auctioneers RulesRules 11(b)(x), 15, 16

Cases cited (8)

  • Fredrick Idiama Emojong –v- Seferio Mangeni Manyuru
    (2017) eKLR
  • George Kamau Kimani & 4 Others –v- County Government of Trans-Nzoia & Another
    (2014) eKLR
  • Yusuf Salim Katwaa –v- Riziki Kassim Masudi
    (2016) eKLR
  • Esther Nyambura Waweru –v- Andrew Waiganjo Muiruri
    (2017) eKLR
  • Cosmas Mrombo Moka –v- Cooperative Bank of Kenya Ltd & Another
    (2018) eKLR
  • Uhuru Highway Development Ltd –v- Central Bank of Kenya & Others
    Civil Appeal No.36 of 1996
  • Benjoh Amalgamated Limited & Another –v- Kenya Commercial Bank Limited
    (2014) eKLR
  • Giella – v- Cassman Brown Ltd
    (1973) EA 358
Jurisdiction invoked
Sections 1A, 3, 3A of the Civil Procedure Act, Order 40 Rules 1, 2 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 79, 96, 97 and 98 of the Land Act and Section 58 of the Land Registration Act

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, "Andrew Katan Mwaeba v Equity Bank Kenya Limited & 3 others [2019] KEELC 1084 (KLR)", Case Analysis (2019). Notice of Motion dated 14th November 2018 (suit over Title Number Frère Town/Block I/MN/19). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1084/eng@2019-10-02

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