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ELCDismissedNotice of Motion dated 3rd November 2017 (within the main suit; suit number not stated in judgment)· [2019] KEELC 3153 (KLR)

Stephen Kariuki Paul v Co-operative Bank (K) Limitedb & another [2019] KEELC 3153 (KLR)

Environment and Land Court of Kenya
24 May 2019
3,601 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Thika (L. Gacheru, J) on a Notice of Motion dated 3rd November 2017 by Stephen Kariuki Paul, the plaintiff, chargor and guarantor of loans obtained by the 2nd Defendant, Mellech Engineering & Construction Co. Ltd, from the 1st Defendant bank. The plaintiff sought an interlocutory and permanent injunction restraining the 1st Defendant from selling, auctioning or otherwise disposing of LR.No.Sigona/195, one acre in Kikuyu, Kiambu County, plus an order compelling the Defendants to provide loan account documentation and reconciled accounts. He alleged he guaranteed only Kshs.37,000,000 to a maximum of Kshs.105,000,000, was unaware of subsequent variations, that the loan had ballooned to over Kshs.335,439,643, and that the family occupied the property. The 1st Defendant produced Letters of Offer, the Charge of 6th June 2011, statutory notices and a notification of sale, contending the plaintiff was fully aware and in default. The 2nd Defendant admitted the debt but disputed the quantum, alleging coercion and exaggerated interest. Applying the Giella-type tripartite test, the Court found no prima facie case since the debt and default were admitted and no repayment was offered; no irreparable loss since charged property becomes a commodity for sale with calculable loss mitigable under Section 97(1) of the Land Act; and the balance of convenience favoured the 1st Defendant. The request for reconciled accounts was left to trial. The application was dismissed entirely with costs to the 1st Defendant, interim and status quo orders discharged, and parties directed to prepare the main suit for hearing expeditiously.

Key legal issues

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01

Prima facie case for interlocutory injunction against exercise of statutory power of sale

Holding

No prima facie case established; the loan, the Charge and the default were admitted or not disputed

Reasoning

The Court found it proved that the 2nd Defendant obtained loan facilities from the 1st Defendant and that the Plaintiff executed a Charge over LR.No.Sigona/195 as security. Both the Plaintiff and the 2nd Defendant admitted default and did not offer any payment. The Plaintiff's claim of ignorance of loan variations was rejected since Letters of Offer were produced and not disputed. Following New Age Developers and Maurice Okelo Alata, a mere dispute of accounts does not restrain a chargee.

p. 4
02

Irreparable damage not compensable by damages

Holding

Not established; the land was offered as security and its value is calculable

Reasoning

The Court found no statutory breach by the 1st Defendant and held that the Plaintiff, as guarantor, knew statutory power of sale was a remedy. Citing Jopa Villas and Andrew M. Wanjohi, the Court held that property offered as security becomes a commodity for sale, so any loss is calculable on market value and can further be mitigated under Section 97(1) of the Land Act.

p. 4
03

Balance of convenience

Holding

Tilts in favour of the 1st Defendant

Reasoning

The 1st Defendant was owed a colossal sum with no repayment scheme offered; continued restraint risked the arrears escalating and outstripping the value of the security. The Court applied Andrew M. Wanjohi on the risk of debt outgrowing the security value and the compensability of a wrongful sale.

p. 4
04

Provision of loan account documentation and reconciled accounts

Holding

Refused at the interlocutory stage

Reasoning

The Court held that an order for production of reconciled loan accounts raises matters of evidence proper for the full trial, not for determination on a Notice of Motion, and declined to grant relief on that limb.

p. 4

Legal principles established

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  • A chargee cannot be restrained by injunction where part of the amount claimed is admitted or proved to be due and the chargor offers no payment scheme
  • Mere dispute over the amount outstanding does not excuse a borrower from servicing a loan or restrain a chargee from realizing security
  • Once property is given as security it becomes a commodity for sale and irreparable loss cannot be alleged; loss is calculable and mitigable under Section 97(1) of the Land Act

Court orders

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  1. 1.The Notice of Motion application dated 3rd November 2017 is dismissed entirely with costs to the 1st Defendant/Respondent
  2. 2.Any interim orders or status quo orders in place are discharged and/or vacated
  3. 3.The parties to prepare the main suit for hearing expeditiously

Authorities

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Legislation

  • Land ActSection 97(1)

Cases cited (11)

  • Joseph Siro Mosioma…Vs…HFCK
    (2008) eKLR
  • New Age Developers & Construction Co. Ltd…Vs…Jamii Bora Bank Ltd
    (2017) eKLR
  • Labelle International Ltd & Another…Vs…Fidelity Commercial Bank & Another
    Civil Case No.786 of 2002
  • Maurice Okelo Alata…Vs…Kenya Commercial Bank (KCB)
    eKLR
  • Moris & Co. Ltd..Vs..Kenya Commercial Bank Ltd & Ano.
    (2003) EA 605
  • Maltex Commercial Supplies Ltd & ANo…vs..Euro Bank Ltd (in liquidation)
    [2007] eKLR
  • Mrao Ltd..Vs..First American Bank of Kenya & 2 Others
    [2003] eKLR
  • Elijah Kipngeno Arap Bill..Vs..Kenya Commercial Bank Ltd
    [2001] KLR 458
  • Hyundai Motors Kenya Ltd..Vs..East African Development Bank Ltd
    [2007] eKLR
  • Jopa Villas LLC…Vs…Private Investiment Corp & 2 Others
    Machakos HCCC No.215 of 2008
  • Andrew M. Wanjohi …Vs….Equity Building Society & 7 Others
    (2006) eKLR
Jurisdiction invoked
Original civil jurisdiction over land and charge disputes (interlocutory application in a pending suit); specific provision not stated in the judgment

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, "Stephen Kariuki Paul v Co-operative Bank (K) Limitedb & another [2019] KEELC 3153 (KLR)", Case Analysis (2019). Notice of Motion dated 3rd November 2017 (within the main suit; suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3153/eng@2019-05-24

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