Benson Kinuthia Mwaura (Suing as the Legal Representative of the Estate of John Mwaura Kinuthia (Deceased)) & another v Diamond Trust Bank Ltd & another [2019] KEELC 2980 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Prima facie case with probability of success
Not established; the charge was executed by the deceased before his death, bound his personal representatives, and allegations of forgery of spousal consent require full trial evidence
The charge dated 28 June 2014 and deed of guarantee predated the deceased's death, and both documents defined 'Chargor' and 'guarantor' to include personal representatives. The advocate before whom the spousal consent was allegedly executed did not deny witnessing it, so the court could not find forgery on affidavits.
Irreparable injury
Not established; the suit property is quantifiable and damages against a bank would suffice
Property offered as security is a commodity for sale; any loss on a sale later found irregular is compensable in damages under section 99(4) of the Land Act, and the chargee is a bank capable of paying an award.
Balance of convenience
Tilts in favour of the 1st Defendant as the debt may escalate and outstrip the security
The borrower had not offered how it would remedy the default, and restraining the sale risked the debt growing beyond the value of the security, exposing the bank to substantial irrecoverable loss.
Legal principles established
#- Once a property is given as security for a loan it becomes a commodity for sale and the chargor cannot claim irreparable loss upon default
- Section 99(4) of the Land Act provides a remedy in damages for a person prejudiced by an unauthorised, improper or irregular exercise of the power of sale
Court orders
#- 1.The Plaintiffs/Applicants' Notice of Motion dated 29th June 2017 is dismissed entirely with costs to the 1st Defendant/Respondent
- 2.Any interim orders in place are discharged and/or vacated
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the charged land parcel Githunguri/Kanjai/608
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Kinuthia Mwaura (Suing as the Legal Representative of the Estate of John Mwaura Kinuthia (Deceased)) & another v Diamond Trust Bank Ltd & another [2019] KEELC 2980 (KLR)", Case Analysis (2019). Notice of Motion dated 29th June 2017 (suit at Thika Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2980/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.