Daniel K M Masakha v Family Bank Limited, Antique Auctions & Mashinani Distributors Ltd [2021] KEELC 2039 (KLR)
The bottom line
#A Mombasa court blocked the auction of a charged property because a 2016 charge securing Kshs.6.3 million might not cover later, larger loans.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case
Yes - the charge dated 30.5.16 secured only Kshs.6,300,000 advanced under the 3.2.16 letter of offer; whether it can secure later advancements under the 6.4.18 and 3.12.18 letters of offer without a further charge is an arguable issue for trial
The plaintiff denied the existence of any charge over the suit property, but the court found a registered charge dated 30.5.16 securing Kshs.6,300,000 advanced to Mashinani Distributor's Limited. The plaintiff's submission that the charge could not secure subsequent restructured facilities absent a further charge persuaded the court. The court expressly left final determination to the trial court while finding the point arguable, which sufficed for a prima facie case at the interlocutory stage.
Whether an interlocutory injunction should issue
Yes - the application dated 22.11.19 was allowed in terms of prayer 3, restraining the sale of the suit property
Applying the Giella v Cassman Brown principles, the court found the applicant had demonstrated an arguable point and thus a prima facie case with probability of success. On that basis it allowed the application in terms of prayer 3, which sought to bar the 1st and 2nd defendants from proceeding with the sale of the suit property by public auction or private sale, with costs in the cause.
Legal principles established
#- The principles for granting a temporary injunction are those in Giella v Cassman Brown: prima facie case, irreparable injury not adequately compensable in damages, and balance of convenience
- A prima facie case is a genuine and arguable case showing an apparently infringed right calling for an explanation from the opposite party
- On an interlocutory application the court decides only on the facts, leaving findings to the trial court
Court orders
#- 1.The plaintiff's application dated 22.11.19 is allowed in terms of prayer 3 thereof
- 2.Costs in the cause
- Jurisdiction invoked
- Original civil jurisdiction over the land dispute (suit property LR No. Mombasa/Municipality Block/2/15); specific statutory provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel K M Masakha v Family Bank Limited, Antique Auctions & Mashinani Distributors Ltd [2021] KEELC 2039 (KLR)", Case Analysis (2021). Application dated 22nd November 2019 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2039/eng@2021-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.