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ELCDismissedELC Case (application dated 12/3/2021)· [2021] KEELC 3013 (KLR)

Azim Taibjee & another v Harish Kumar Bhagwandas Kanabhar & another [2021] KEELC 3013 (KLR)

Environment and Land Court
3 May 2021
KBK. BOR
2,131 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to stop a bank from pursuing a property sale because the buyers showed no urgency and bought charged land without the bank's consent.

What this practically means

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Executive summary

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The Plaintiffs, advocates of the High Court, applied by notice dated 12/3/2021 for an injunction restraining the 2nd Defendant (a bank) from selling or dealing with town house number 12 Highgrove on LR 29998 pending hearing of their earlier application dated 21/9/2020. They claimed to have purchased the Suit Property from the 1st Defendant for Kshs 128,000,000, of which Kshs 100,000,000 was paid to the 1st Defendant and Kshs 28,000,000 deposited into an account held by the 2nd Defendant with instructions to offset the loan balance. They alleged the bank negligently allowed the 1st Defendant to divert those funds, and that despite this the bank issued a statutory notice and advertised the property for auction. The 2nd Defendant, through its counsel Jackson Nyagah, opposed, asserting the property was charged to secure a loan of over Kshs 132,340,493.99, that the sale to the Plaintiffs was irregular for lack of the chargee's written consent, and that the deposit went to a current account, not the loan account. Counsel relied on the Nguruman decision and Section 90 of the Land Act. The court noted the dispute over proceedings before Obaga J on 15/2/2021, who later recused himself. Finding no imminent threat of disposal — the property had not been valued and no auction date fixed — the court declined the injunction and ordered costs in the cause.

Key legal issues

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01

Whether an interlocutory injunction should issue to restrain a chargee from realizing charged property pending hearing of the substantive application

Holding

Injunction refused; the Plaintiffs, as advocates who purchased charged property without the chargee's consent and whose payment was diverted, failed to establish entitlement to the interlocutory relief.

Reasoning

The Plaintiffs knew the property was charged to secure a loan exceeding Kshs 132,000,000. The Kshs 28,000,000 they deposited went to the 1st Defendant's current account and was applied to his personal use. The 2nd Defendant confirmed it had not fixed an auction date and required valuation first, so no imminent disposal threatened the property.

p. 3

Legal principles established

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    Court orders

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    1. 1.Application dated 12/3/2021 dismissed — orders sought declined
    2. 2.Costs of the application shall be in the cause

    Authorities

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    Legislation

    • Land ActSection 90

    Cases cited (1)

    • Nguruman case (Court of Appeal decision)
    Jurisdiction invoked
    Original jurisdiction of the Environment and Land Court over land/charge disputes

    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, "Azim Taibjee & another v Harish Kumar Bhagwandas Kanabhar & another [2021] KEELC 3013 (KLR)", Case Analysis (2021). ELC Case (application dated 12/3/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3013/eng@2021-05-03

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