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ELCDismissedMakueni ELC Case No. 129 of 2019· [2020] KEELC 1092 (KLR)

Jonathan Kaleli Malandi & another v Benson Malandi Kaleli & another [2020] KEELC 1092 (KLR)

Environment and Land Court
8 October 2020
CMC. G. Mbogo
2,087 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 was a first-instance ruling of the Environment and Land Court at Makueni on a notice of motion dated 01/11/2019 in which the plaintiffs, a husband and wife, sought a temporary and mandatory injunction restraining the defendants from charging, alienating, selling or otherwise dealing with land parcel No. Makueni/Ngulu/72, and an order for release or deposit of the original title document, pending the hearing and determination of the suit. The 1st Defendant is the plaintiffs' son and the 2nd Defendant is a micro finance institution which had registered a charge over the suit property to secure the son's loan, now in default. The plaintiffs claimed they were hoodwinked into releasing the title, that the 2nd Plaintiff's spousal consent and the Land Control Board consent were irregularly obtained, and that foreclosure would render them and their families, living on the property as their matrimonial home, irreparably destitute. The 2nd Respondent opposed through its Recovery Manager, exhibiting the LCB consent application and consent, loan agreement, deeds of indemnity, charge document with spousal consent, statutory notices and an official search, and contending that due process was followed and the plaintiffs were complicit in assisting their son to avoid his obligations. The 1st Respondent did not respond. Canvassed by written submissions, the court framed a single issue: whether the application was merited. Applying Giella v Cassman Brown, the court found the charge documents properly executed before an advocate, noted the plaintiffs took no action against that advocate, found the 1st Applicant had himself made loan repayments from January 2019, held the plaintiffs' search certificate irregular, and concluded the plaintiffs had not established a prima facie case, nor irreparable harm, and were on a 'time buying' mission amounting to abuse of process. The application was dismissed with costs.

Key legal issues

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01

Whether the Applicants established a prima facie case for the grant of a temporary injunction

Holding

The Applicants failed to establish a prima facie case with a probability of success under the Giella principles

Reasoning

The court examined the charge documents, spousal consent, LCB consent, loan agreement and deed of indemnity all exhibited by the 2nd Respondent and found them properly executed. The 1st Applicant made loan repayments himself, showing knowledge of the loan, and did not take any action against the advocate before whom documents were signed. The Applicants' search certificate was found irregular while the 2nd Respondent's search was consistent with the title deed.

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02

Whether the Applicants would suffer irreparable harm if the charge were realised

Holding

The court found no irreparable harm as the Applicants were fully aware of the charge and cannot rely on the sale of matrimonial property as irreparable damage

Reasoning

The Applicants admitted being informed the title would secure funding for their son's business. Loan repayments were made by the 1st Applicant from January 2019, months before filing suit in November 2019. The court found the Applicants' conduct and their son's conduct consistent with a strategy to buy time, not genuine grievance, and noted living on a charged property does not of itself constitute irreparable damage.

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03

Whether the Applicants' conduct amounted to abuse of court process

Holding

The court found the Applicants and the 1st Respondent were on a 'time buying' mission

Reasoning

The loan repayment history showed the 1st Applicant knew of the loan long before filing suit. He knew where to make deposits despite the loan not being in his name. The supplementary affidavit did not address the detailed documentary evidence in the replying affidavit, which the court characterised as casual. The court agreed the Applicants were working with their son to delay the 2nd Respondent's recovery of the loan.

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Legal principles established

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  • A party alleging irregularity in execution of charge documents before an advocate should take action against that advocate, including reporting to the professional body

Court orders

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  1. 1.The application dated 01/11/2019 is dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3 & 3A
  • Civil Procedure RulesOrder 40 Rules 1(a), 2(1) & 3

Cases cited (3)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mwangi Kirigwi vs. National Bank of Kenya
    (2006) eKLR
  • Henry Wanyama Khaemba vs. Standard Chaterred Bank Ltd
    (2005) eKLR
Jurisdiction invoked
Order 40 Rules 1(a), 2(1) & 3 of the Civil Procedure Rules and Sections 1, 1A, 3 & 3A of the Civil Procedure Act

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, "Jonathan Kaleli Malandi & another v Benson Malandi Kaleli & another [2020] KEELC 1092 (KLR)", Case Analysis (2020). Makueni ELC Case No. 129 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1092/eng@2020-10-08

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