Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 25/11/2016 in a suit of even date (ELC, Busia)· [2019] KEELC 2100 (KLR)

Teresa Wamboi Mwangi v Kenya Commercial Bank Limited & another [2019] KEELC 2100 (KLR)

Environment and Land Court
30 July 2019
2,396 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to stop a bank auction because the borrower lied about receiving notices, and courts deny relief to dishonest applicants.

What this practically means

#

Executive summary

#
This was a Notice of Motion dated 25/11/2016 by Teresa Wamboi Mwangi, Plaintiff in the suit, seeking a temporary injunction restraining Kenya Commercial Bank Ltd and Nyaluoyo Auctioneers from selling land parcel BUKHAYO/MUNDIKA/1597 by public auction pending determination of the suit. The Applicant alleged she had been faithfully servicing a Kshs.5.2 million mortgage facility obtained in 2014, that she had not been served with the 90-day statutory notice or redemption notice, that the interest rate was unilaterally changed, and that sale could occur without pre-sale valuation. The 1st Respondent responded with documentary evidence of default, the 90-day statutory notice, 40-day notice of intention to sell, pre-sale valuation report, 45-day redemption notice and certificates of postage to the Applicant's chosen address, plus the Applicant's own letter of 3/8/2016 acknowledging the notice to sell. The court found the Applicant's claims of non-service, faithful repayment and ignorance of the sale to be untrue, holding she came to court with unclean hands. Applying the equitable maxim as expressed by Ringera J and Ojwang J, and the principle from Halsbury's Laws of England that a mortgagee is not restrained merely because the amount due is disputed, the court held the application unmeritorious. Even absent the falsehoods, relief would have been limited to a temporary injunction pending fresh notices. The application was dismissed with costs on 30/7/2019.

Key legal issues

#
01

Whether the Applicant came to court with clean hands

Holding

The court found the Applicant dishonest: she falsely claimed she was unaware of the intended sale and that no notices were served, despite having acknowledged the notice to sell by letter dated 3/8/2016.

Reasoning

The Applicant's own written communication acknowledging the notice to sell, together with the Respondent's documentation of postage and notices, established that nothing was done behind her back. The court held that an Applicant seeking an equitable remedy must come with clean hands, and the Applicant's dishonesty alone entitled the court to dismiss the application.

p. 3
02

Whether a disputed amount or objection to the manner of sale justifies an injunction against a mortgagee's power of sale

Holding

No; such a dispute does not restrain the mortgagee, unless the mortgagor pays into court the amount the mortgagee claims, or the claim is excessive on the terms of the mortgage.

Reasoning

The court adopted Halsbury's Laws of England and home-grown Kenyan authorities which decline injunctions where the only complaint is a dispute over the amount owed, interest charged or the manner the sale is arranged. Even if the notices had not been issued, relief would be limited to a temporary injunction while fresh statutory notices were issued.

p. 3

Legal principles established

#
  • An injunction is a discretionary equitable remedy and may be refused where the applicant's conduct does not meet the approval of a court of equity
  • A mortgagee will not be restrained from exercising the power of sale merely because the amount due is disputed, unless the mortgagor pays into court the amount the mortgagee claims

Court orders

#
  1. 1.The Notice of Motion dated 25/11/2016 is dismissed with costs

Authorities

#

Legislation

  • Civil Procedure Rules 2010Order 40 Rules 1 and 2; Order 50 Rule 1
  • Civil Procedure ActSections 3 and 3A
  • Land ActSections 90, 96 and 97
  • Auctioneers ActRule 15

Cases cited (11)

  • David Gitome Kuhiguka v Equity Bank Limited
    [2013] eKLR
  • Florence Njeri Karanja v Molyn Credit Limited
    [2014] eKLR
  • Mrao v First Community Bank of Kenya & 2 others
    Civil Appeal No. 39/2002
  • Lameck Mbaka Motegi v Bank of Baroda (Kenya) Limited & Another
    HCC No. 8 of 2016
  • National Bank of Kenya Limited v Shimmers Plaza Limited
    Civil Appeal No. 26 of 2002
  • Uhuru Highway Development Ltd v Central Bank of Kenya & 2 others
    Civil Application No. 140/1995
  • Jackson Mukaya v James Onchangwa Macharia
    ELC No. 415 of 2013
  • Moses Ngenye Kahindo v Agricultural Finance Corporation
    HCC No. 1044/01
  • Ng'ayo Traders v Savings Loans (K) Ltd
    Civil Appeal No. 165/05 (UR. 99/2005)
  • Joseph Muriithi Gichobi v Kenya Commercial Bank Ltd & Another
    HCC No. 25/1999
  • Joseph Okoth Waudi v National Bank of Kenya
    CA Civil Appeal No. 77/2004
Jurisdiction invoked
Order 40 Rules 1 and 2 and Order 50 Rule 1 of the Civil Procedure Rules 2010, Sections 3 and 3A of the Civil Procedure Act (Cap 21)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Teresa Wamboi Mwangi v Kenya Commercial Bank Limited & another [2019] KEELC 2100 (KLR)", Case Analysis (2019). Notice of Motion dated 25/11/2016 in a suit of even date (ELC, Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2100/eng@2019-07-30

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