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ELCAllowednot_stated_in_judgment· [2019] KEELC 4429 (KLR)

Jane Jeptanui Rotich v Nic Bank Limited & another [2019] KEELC 4429 (KLR)

not stated in the judgment text provided
22 February 2019
AOA. OMBWAYO
1,294 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped a bank from selling a family home because the wife's spousal consent signature was disputed and the sale would cause irreparable harm.

What this practically means

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Executive summary

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The plaintiff, who claims to be the wife of the 2nd defendant, Stephen Kipkiyeny Tarus, sought an interlocutory injunction restraining the 1st defendant bank from selling L.R. No. 2259/463 (IR No. 86846) by public auction or otherwise. She averred that the property was jointly purchased with her husband, is their matrimonial home where she and her three children have resided since 2005, and that she never gave spousal consent to the charge securing a Kshs. 75,000,000 facility to Prayosha Ventures Limited. The bank, through its Manager of Legal Services, asserted that the plaintiff freely executed a spousal consent on 24th June 2015 certified by an advocate, that statutory notices (a three-month notice of 7th March 2017 and a 40-day notice of sale of 16th June 2017) were served at the joint address, and that the suit was a ploy to delay realization of security. Kiplagat W. Kalya swore a further affidavit confirming he prepared the spousal consent, which the plaintiff denied signing in a supplementary affidavit. The court, per A. Ombwayo J, found a prima facie case since the signatures raised serious questions as to whether the plaintiff signed the consent; found she would suffer irreparable harm as the property is an undenied matrimonial home; and held the balance of convenience favoured the plaintiff in occupation. The application was allowed with an injunction restraining sale, transfer, possession, receivership and exercise of statutory powers under section 90(3) of the Land Act, 2012 pending hearing and determination of the suit, with costs to the plaintiff.

Key legal issues

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01

Prima facie case - authenticity of the spousal consent

Holding

The plaintiff established a prima facie case because the signature on the spousal consent is disputed

Reasoning

The court compared the documents and found the signatures on the spousal consent, the plaintiff's supporting affidavit and her supplementary affidavit raised very serious issues as to whether she actually signed the spousal consent. With the plaintiff denying the signature and the respondent's advocate asserting he prepared and procured its execution, the question could only be resolved at trial, warranting preservation of the status quo.

p. 2
02

Irreparable injury

Holding

Sale of the property, being the matrimonial home in which the plaintiff and her family reside, would cause irreparable harm

Reasoning

The court relied on photographs on record and noted it was not denied that the suit property is the matrimonial home where the plaintiff and her children have lived since 2005. Loss of a family home is not adequately compensable in damages, satisfying the second Giella condition for an interlocutory injunction.

p. 2
03

Balance of convenience

Holding

The balance of convenience tilts towards the plaintiff, who is in occupation of the property as her matrimonial home

Reasoning

The court found that the plaintiff, being in possession of the property as her matrimonial home, would suffer greater inconvenience if the property were sold than the bank would suffer from maintenance of the status quo pending trial. This satisfied the third limb of the test for an interlocutory injunction.

p. 2

Legal principles established

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  • Where it is not clear whether a spousal consent to a charge was signed by the spouse, a prima facie case for injunction is established
  • Sale of a matrimonial home may amount to irreparable harm not compensable by damages

Court orders

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  1. 1.An order of injunction against the 1st defendant, its servants and agents from selling, offering for sale, advertising, alienating, transferring by public auction or private treaty, disposing off or otherwise completing by conveyance transfer of any sale concluded by public auction or private treaty, taking possession, appointing receivers or exercising any power conferred by section 90(3) of the Land Act, 2012, leasing, letting, charging or otherwise interfering with L.R. NO. 2259/463 (IR. No. 86846) pending hearing and determination of the suit
  2. 2.Costs to the plaintiff

Authorities

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Legislation

  • Land Actsection 90(3)
Jurisdiction invoked
not stated in the judgment text provided

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, "Jane Jeptanui Rotich v Nic Bank Limited & another [2019] KEELC 4429 (KLR)", Case Analysis (2019). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4429/eng@2019-02-22

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