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ELCDismissedNotice of Motion application dated 11th April 2018 (Malindi ELC suit)· [2019] KEELC 3167 (KLR)

Richard Kitsao William & 2 others v Standard Chartered Bank (K) Ltd [2019] KEELC 3167 (KLR)

Environment and Land Court
29 May 2019
1,964 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop a bank from selling charged land because the borrowers admitted default and the auction had already happened.

What this practically means

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Executive summary

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The Plaintiffs moved the Environment and Land Court at Malindi by Notice of Motion dated 11th April 2018 seeking an injunction restraining the Defendant Bank from selling, disposing of or alienating land parcels Kilifi/Mtwapa/1248 and Kilifi/Mtwapa/353 pending the hearing of the suit, and an enlargement of time of six months for the 3rd Plaintiff to liquidate the outstanding loan balance. The application was supported by the affidavit of the 1st Plaintiff, Richard Kitsao William, who contended that no statutory notice under Section 90 of the Land Act had been issued, that auctioneers had advertised the properties on 10th April 2018, and that the Plaintiffs' business difficulties in South Sudan justified indulgence, having already paid Kshs 13.2 million. The Bank, through the affidavit of Juliana Oyando, countered that the facilities of Kshs 12 million were granted to the 3rd Plaintiff and secured by charges executed by the 1st and 2nd Plaintiffs; that all requisite notices were issued; and that the auction scheduled for 13th April 2018 proceeded, the properties selling to the highest bidder for Kshs 4.5 million, with the court order served only afterwards at 3.04 p.m. Applying Giella v Cassman Brown, Mrao Ltd v First American Bank and Nguruman Limited v Jan Bonde Nielsen, the court held the Plaintiffs had admitted default and receipt of statutory notices, so no prima facie case existed; further, the completed sale extinguished the equity of redemption and an injunction would prejudice the third-party purchaser. The court also declined to vary the contract by enlarging repayment time. The application was dismissed with costs to the Defendant on 29th May 2019.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case for injunction

Holding

No prima facie case was established; the Plaintiffs admitted default and receipt of statutory notices

Reasoning

The court applied Giella v Cassman Brown and Mrao Ltd v First American Bank. It found the Plaintiffs admitted indebtedness and that the Bank served the requisite statutory notices under Section 90 of the Land Act. Having admitted default, the Plaintiffs had no basis for the injunction application. A prima facie case requires more than an arguable case and must show infringement of a right with probability of success at trial.

p. 3
02

Whether the application was overtaken by events by the auction sale

Holding

Yes; the properties were sold on 13th April 2018 at 11.00 a.m., before service of the court order at 3.04 p.m., extinguishing the equity of redemption

Reasoning

The Bank exhibited a Memorandum of Sale showing sale to the highest bidder, one Yusuf Ashur Ahmed, on 13th April 2018 at 11.00 a.m., while the order was served the same day at 3.04 p.m. Granting an injunction after the completed sale would prejudice a third party purchaser. This independently rendered the injunction relief ungrantable.

p. 3
03

Whether the Court could enlarge time for loan repayment

Holding

No; the Court cannot vary the contractual terms freely entered into by the parties

Reasoning

The Plaintiffs sought an enlargement of six months from April 2018 to liquidate the outstanding loan. The court held that no legal basis existed for the Court to rewrite or vary the lending contract to which the parties had voluntarily agreed, and accordingly refused this head of relief as well.

p. 3

Legal principles established

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  • The conditions for grant of an interlocutory injunction are: prima facie case with probability of success; irreparable injury not compensable by damages; and, if in doubt, balance of convenience
  • A mortgagee/chargee will not be restrained from exercising the power of sale merely because the amount due is disputed or the mortgagor has begun a redemption action
  • Where the statutory power of sale has been exercised before service of injunctive orders, the equity of redemption is extinguished and an injunction cannot be granted as it would affect a third party

Court orders

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  1. 1.The application dated 11th April 2018 is dismissed for lack of merit
  2. 2.The Defendant/Respondent is awarded the costs of the application

Authorities

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Legislation

  • Land ActSection 90(1), 90(2)(b); Section 90 (Remedies of a Chargee)

Cases cited (3)

  • Giella –vs- Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao Ltd –vs- First American Bank Ltd & 2 Others
    (2003) KLR 125
  • Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcels Kilifi/Mtwapa/1248 and Kilifi/Mtwapa/353

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, "Richard Kitsao William & 2 others v Standard Chartered Bank (K) Ltd [2019] KEELC 3167 (KLR)", Case Analysis (2019). Notice of Motion application dated 11th April 2018 (Malindi ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3167/eng@2019-05-29

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