Celine Wambui Kigwe v National Bank of Kenya & 2 others [2020] KEELC 961 (KLR)
The bottom line
#A Kenyan landowner who lost her property at a bank auction failed to stop eviction because her rights ended when the hammer fell.
What this practically means
#Executive summary
#Key legal issues
#Whether res judicata/sub judice may be determined on a preliminary objection
No - such issues require probing of evidence and ascertainment of facts
Applying Mukisa Biscuits, Oraro v Mbaja, Khaemba and Kimani, the court held that determining whether issues were directly and substantially in issue in prior suits requires examination of facts and pleadings, which is beyond the limited scope of a preliminary objection; the proper route is a Notice of Motion or the main trial.
Whether the suit should be struck out as vexatious and an abuse of process
No - the plaint raises allegations of fraud and illegality amounting to a reasonable cause of action
Applying D.T. Dobie v Muchina and Francis Kamande v Vanguard Electrical, the court held a suit may be summarily dismissed only where it is plainly hopeless and discloses no cause of action. The plaint's fraud allegations required ventilation at trial.
Whether the Plaintiff established a prima facie case for injunction
No - equity of redemption extinguished upon the fall of the hammer at the public auction
The property was validly charged and the chargee exercised its statutory power of sale under Section 96 of the Land Act; the property was sold to the 3rd Defendant by public auction with no injunctive orders in place; post-sale the chargor's remedy is damages, so the injunction application fails the Giella test.
Whether damages would be an adequate remedy and where the balance of convenience lies
Damages adequate under Section 99(4) of the Land Act; balance of convenience favours the 3rd Defendant as a protected purchaser
The Plaintiff valued the property and sought damages as an alternative prayer; Section 99(2)(c) protects purchasers from inquiry into the regularity of the sale, so the 3rd Defendant is protected and the balance of convenience does not favour the Plaintiff.
Legal principles established
#- Issues of sub judice and res judicata require ascertainment of facts and cannot be raised as pure preliminary objections
- Once property is sold at public auction in exercise of statutory power of sale, the chargor's equity of redemption is extinguished and the only remedy is damages
- A charged property becomes a commodity for sale and sentimental attachment does not bar exercise of statutory power of sale
Court orders
#- 1.The two Notices of Preliminary Objections by the 1st and 3rd Defendants are dismissed entirely with costs in the cause
- 2.The Notice of Motion Application dated 1st July 2020 is dismissed entirely with costs to the Defendants/Respondents
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act
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.
- Hamisi v Modern Coast Express Limited (Cause E071 of 2023) [2023] KEELRC 3468 (KLR)[2023] KEELRC 3468 (KLR)19 Dec 2023
- Evans Kemboi Koech v Mary Juster Chepleting; Agricultural Finance Corporation (Interested Party) [2021] KEELC 3238 (KLR)[2021] KEELC 3238 (KLR)21 Apr 2021
Cite this brief
#Cite this brief
Caselaw, "Celine Wambui Kigwe v National Bank of Kenya & 2 others [2020] KEELC 961 (KLR)", Case Analysis (2020). Not stated in the excerpt (ELC, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/961/eng@2020-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.