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ELCDismissedNot stated in the judgment (notice of motion dated 21st September 2020)· [2021] KEELC 3881 (KLR)

Noorjahan Ebrahim Adam v SBM Bank (Kenya) Ltd & another [2021] KEELC 3881 (KLR)

Environment and Land Court
23 March 2021
2,033 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a bank to proceed with selling a charged Mombasa apartment because the borrower admitted the debt and the bank followed every required legal step.

What this practically means

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Executive summary

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The plaintiff/applicant, Noorjahan Ebrahim Adam, moved the court by notice of motion dated 21st September 2020 seeking a temporary injunction to restrain the 1st and 2nd respondents from advertising for sale, selling or interfering with her residential four-bedroom apartment number 22, 'The Right Address', Mombasa, pending the hearing of the suit. The property was charged to secure a loan of Kshs.40,000,000/= originally advanced by Fidelity Commercial Bank Ltd, later transferred to the 1st respondent. After default, the 1st respondent served a notification of sale dated 28th July 2020 demanding Kshs.35,477,473.81 within 40 days, and instructed the 2nd respondent (an auctioneer) to sell by public auction. The applicant alleged non-service of the 90-day statutory notice, three conflicting figures for the arrears, absence of a current valuation, and that the property was her matrimonial home. The 1st respondent, through a replying affidavit of Dalmas Mwongela, asserted full statutory compliance, annexing notices of exercise of statutory power of sale dated 29th October 2018 and 6th February 2020 and a valuation report. Applying the Giella v Cassman Brown principles, C.K. Yano J held that Sections 90 and 96(2) of the Land Act are mandatory; that on the documents the requisite notices were issued and valuation conducted, so the statutory power of sale had accrued; that the admitted indebtedness and full compliance meant no prima facie case with probability of success was established; that the property, having been charged, was a commercial commodity whose loss is quantifiable in damages; and that the matrimonial-home argument was insufficient. The notice of motion was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the applicant established a prima facie case with a probability of success under the Giella principles

Holding

No - having admitted indebtedness and the chargee having complied with the statutory notice and valuation requirements, no prima facie case was made out

Reasoning

The court applied Giella v Cassman Brown. It was not disputed that the loan was advanced and secured by the charge, that the applicant defaulted, and that notices of exercise of statutory power of sale dated 29th October 2018 and 6th February 2020 plus a valuation report were issued. An admitted indebtedness plus full statutory compliance defeats the claim of an unexercisable power of sale, so no prima facie case with probability of success existed.

p. 3
02

Whether the statutory power of sale had accrued

Holding

Yes - the requisite notices under Sections 90 and 96 of the Land Act were served and a valuation conducted, so the chargee's power of sale was exercisable

Reasoning

Section 90(1) requires a 90-day notice to remedy default and Section 96(2) requires a 40-day notice to sell before completing a sale. The court perused the replying affidavit, found a notice of exercise of statutory power of sale and a valuation report annexed, and concluded the notices were issued and valuation carried out, making the statutory power of sale exercisable notwithstanding the applicant's denial of service.

p. 2
03

Whether irreparable loss would be suffered if the property were sold

Holding

No - the charged property is a commercial commodity whose value is ascertainable and any loss is quantifiable in damages

Reasoning

Applying the second Giella principle, the court held that the suit property, having been charged, was reduced to a commercial commodity with an ascertainable value. Damages would be an adequate remedy, so the applicant failed on the irreparable harm limb and could not salvage the application through the balance of convenience.

p. 3

Legal principles established

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  • Compliance with the notice requirements under Sections 90 and 96(2) of the Land Act is mandatory and a precondition to exercising the statutory power of sale

Court orders

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  1. 1.The notice of motion dated 21st September 2020 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2 & 4; Order 51
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Land Act, 2012Sections 90(1), 96(1), 96(2)

Cases cited (16)

  • Nyangilo Ochieng & Another v Kenya Commercial Bank
    (1996) eKLR
  • Star Travel & Tours Ltd & 2 Others v Chase Bank (K) Ltd
    (2019) eKLR
  • Idris Abdi Abdullahi v Ahmed Bashane & 2 Others
    (2018) eKLR
  • Republic v Mark Lloyd Stevenson
    (2016) eKLR
  • Joseph Mwai Nduati v Republic
    (2017) eKLR
  • Kenwood Property Developers Ltd v Family Bank Ltd
    (2020) eKLR
  • Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited
    (2017) eKLR
  • Mrao v First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Solomon Mbili Ngomo v Kenya Deposit Insurance Corporation Dahali Traders
    (2019) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Joseph Siro Oromo v Housing Finance Corporation of Kenya
    (2008) eKLR
  • Jimmy Wafula Simiyu v Fidelity Commercial Bank Kenya Limited
    (2016) eKLR
  • Karige Kihoro v Equity Bank Ltd & Another
    (2016) eKLR
  • Nellie Enignus Wamalwa v Rafiki Deposit Taking Micro Finance (K) Limited
    (2016) eKLR
  • Bharmal Kanji Shah and Another v Shah Depar Devji
  • Giella v Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Order 40 Rules 1, 2 & 4 and Order 51 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) 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, "Noorjahan Ebrahim Adam v SBM Bank (Kenya) Ltd & another [2021] KEELC 3881 (KLR)", Case Analysis (2021). Not stated in the judgment (notice of motion dated 21st September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3881/eng@2021-03-23

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