Peter Kiama Maina v Industrial Commercial Development Corporation & another [2021] KEELC 3848 (KLR)
The bottom line
#A Kenyan land court refused to stop a bank auction because the bank followed every required legal notice, showing proper procedure defeats injunctions.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over disputes arising from a charge and exercise of statutory power of sale
The ELC has jurisdiction over the validity of the Redemption Notice, valuation and injunction, but not over the claim of exorbitant interest
Article 162(2)(b) and Section 13 of the ELC Act confer jurisdiction over disputes relating to land and instruments granting enforceable interests in land. Following Lydia Nyambura Mbugua v Diamond Trust Bank, the process of sale by a chargee is governed by the Land Act and Land Registration Act, so challenges to notices and valuation fall within the ELC. However, following Cooperative Bank v Patrick Kangethe Njuguna, accounting questions such as alleged exorbitant interest are for the High Court.
Whether the Plaintiff established a prima facie case for injunctive relief
No prima facie case established; the chargee complied with Section 90 notice, Section 96 notice to sell and the Auctioneers Rules 45-day redemption notice
Ownership and the charge were not disputed, but the Plaintiff faulted only the process. The 90-day statutory notice dated 6th July 2018 was served and received; the 45-day Redemption Notice dated 27th September 2019 listing the auction date of 10th December 2019 was proper; a forced valuation by Primeland Limited existed. Since all statutory procedures were followed, no right of the Plaintiff was likely to be breached.
Whether the interlocutory injunction should issue on the remaining Giella limbs
Not granted; having failed the first limb, the second and third limbs fall away
The court applied Giella sequentially. Since no prima facie case with probability of success was shown, irreparable injury and balance of convenience need not be considered. The court also noted the chargee carried out a forced valuation and undertook to carry out a fresh valuation before any sale, addressing the Plaintiff's concern about stale valuation.
Legal principles established
#- The ELC has jurisdiction over disputes concerning the process of sale by a chargee under the Land Act and Land Registration Act, even where commercial lending issues are also raised; only the question of exorbitant interest falls outside its jurisdiction
- Where a chargor alleges statutory notices were not served, the burden shifts to the chargee to prove service
- The Giella prima facie test is applied sequentially; failure on the first limb disposes of the application
Court orders
#- 1.The Notice of Motion Application dated 13th January 2020 is dismissed entirely with costs to the 1st Defendant/Respondent
- 2.The interim orders in place are vacated
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kiama Maina v Industrial Commercial Development Corporation & another [2021] KEELC 3848 (KLR)", Case Analysis (2021). Notice of Motion dated 13th January 2020 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3848/eng@2021-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.