Teresa Wamboi Mwangi v Kenya Commercial Bank Limited & another [2019] KEELC 2100 (KLR)
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
#Key legal issues
#Whether the Applicant came to court with clean hands
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.
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.
Whether a disputed amount or objection to the manner of sale justifies an injunction against a mortgagee's power of sale
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.
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.
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.The Notice of Motion dated 25/11/2016 is dismissed with costs
- 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.