Robert Kipyegon Chepkwony v Barclays Bank of Kenya Limited & another [2019] KEELC 2972 (KLR)
The bottom line
#A Kenyan court stopped a bank from selling a borrower's land because the foreclosure notice went to the wrong address.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with probability of success
Yes - the statutory notice was sent to a wrong address, so the chargee's statutory power of sale had not accrued
Section 90(1) of the Land Act requires a 90-day notice to be served on the chargor before exercise of the statutory power of sale. The notice addressed to a Nakuru P.O. Box differed from the Sotik address in the charge instrument, and the certificate of posting confirmed dispatch to Nakuru. Deemed service through the chargor's wife would be service through a proxy, unacceptable in law. The Plaintiff therefore established a prima facie case with probability of success.
Whether the Plaintiff would suffer irreparable loss not compensable by damages
Yes - sale without adequate notice contrary to the Land Act would occasion irreparable loss despite the Plaintiff being in arrears
Although the Plaintiff was in arrears and it could be argued he had not come to court with clean hands, the court was persuaded that selling his land without adequate notice and contrary to the express provisions of the Land Act would occasion him irreparable loss.
Where the balance of convenience lies
In favour of the Plaintiff
Taking into account the unique circumstances of the case, the court found that the balance of convenience tilts in favour of the Plaintiff.
Legal principles established
#- Service of a statutory notice under Section 90(1) of the Land Act must be to the chargor's address as per the charge instrument; a notice sent to the wrong address is no notice at all
- Service of a statutory notice on the chargor's wife does not constitute valid service on the chargor
Court orders
#- 1.Temporary injunction restraining the Defendants/Respondents from advertising for sale, selling, alienating or disposing of land parcel number KERICHO/MANARET/270 pending the hearing and disposal of the suit
- 2.Liberty granted to the 1st Defendant to issue fresh notices to the Plaintiff and proceed to exercise its statutory power of sale as long as the debt remains unpaid
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Inherent jurisdiction to grant interlocutory injunctive relief pending hearing and determination of the suit
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Masakha v Family Bank of Kenya & 2 others[2023] KEELC 21587 (KLR)6 Nov 2023
- Masakha v Family Bank of Kenya & 2 others[2023] KEELC 21587 (KLR)6 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "Robert Kipyegon Chepkwony v Barclays Bank of Kenya Limited & another [2019] KEELC 2972 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2972/eng@2019-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.