Asha Kamene Salim v Mwanainchi Credit Limited & another [2021] KEELC 83 (KLR)
The bottom line
#Kenyan lenders cannot auction your land without serving the full three-month statutory notice first, and the Environment and Land Court will stop sales that skip this step.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC at Malindi was the proper forum for the suit
The objection failed; given that the suit properties are situated in Kilifi, the Plaintiff could not be faulted for filing at Malindi, and the lender produced no pleadings showing where the contract was executed.
The court noted that under Section 15(c) Explanation 3(i) of the Civil Procedure Act, a contract suit may be filed where the contract was made, but the 1st Defendant filed no pleadings and did not demonstrate where the contract was executed. Since the suit properties are located in Kilifi, the Plaintiff's choice of the Malindi ELC could not be faulted.
Whether the ELC lacks jurisdiction over charge and mortgage disputes
The objection failed; the ELC has jurisdiction over matters relating to charges, since a charge is provided for under the Land Act, whose Section 2 defines the court thereunder to mean the Environment and Land Court.
The court read the Co-operative Bank v Kang'ethe Njuguna decision and found nothing in it stating that the ELC lacks jurisdiction over matters incidental to the use of land. A charge is a creature of the Land Act No. 6 of 2012, and Section 2 of that Act defines the court to mean the Environment and Land Court, conferring jurisdiction over charge-related disputes.
Whether the chargee could exercise its statutory power of sale without the three months' notice under Section 90(2) of the Land Act
Having served only a 45 days' notification of sale and not the mandatory three months' notice, the 1st Defendant's exercise of the statutory power of sale was unlawful, and an injunction issued in terms of prayer No. 3.
The Plaintiff alleged the lender served only a 45 days' notice through the auctioneer without the three months' notice under Section 90(2) of the Land Act. The 1st Defendant did not deny this non-compliance. Since statutory notices under the Land Act are mandatory and the right to statutory remedies accrues only upon full compliance, the attempted sale was unlawful, justifying an injunction pending trial.
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained.
- The statutory notices stipulated under the Land Act are mandatory legal requirements, and the right to exercise statutory remedies accrues only after full compliance with them.
Court orders
#- 1.Injunction restraining the Defendants from selling, alienating, disposing of or interfering with parcels Kilifi 9122/401 and Kilifi 9122/402 pending hearing and determination of the suit, in terms of prayer No. 3 of the Notice of Motion dated 19th July, 2021
- 2.Costs of the application to the Plaintiff
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and the Environment and Land Court Act, No. 19 of 2011; Land Act No. 6 of 2012 (definition of 'court' in Section 2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Asha Kamene Salim v Mwanainchi Credit Limited & another [2021] KEELC 83 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/83/eng@2021-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.