Jane Njeri James v Kenya Commercial Bank Limited & another [2021] KEELC 4591 (KLR)
The bottom line
#A Kenyan court refused to stop a bank from completing a property sale because the borrower admitted the debt and default in her own documents.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for interlocutory injunction
No prima facie case: the applicant admitted default and acknowledged receipt of statutory notices in her own affidavit.
The court found the mortgage facility and default undisputed; the applicant never challenged the assertion that she had not repaid anything. Her own email of 30th September 2020 acknowledged receipt of the notices and that she signed for the auctioneer's notices, defeating the claim of improper service. Relying on Mrao and Nguruman, the court held she fell short of the standard.
Adequacy of damages
Damages are an adequate remedy since the property's value is easily ascertainable and complaints lie under Section 99(4) of the Land Act.
The property was charged to secure a facility of KShs 21,300,000, making it a commodity for sale with ascertainable value whose loss is compensable. The applicant herself valued it at KShs 35,000,000 without a valuation report, and the 1st defendant produced a valuation report. Complaints about the manner of exercise of the power of sale fall under Section 99(4) of the Land Act.
Conduct of the applicant in seeking equitable relief
The applicant's conduct failed the requirements of equity; she took the loan and did not repay on the pretext of pending litigation.
The court adopted Kwach JA's observations in Mrao regarding a litigant who borrows on the strength of securities, repays nothing, then rushes to equity claiming the securities are invalid. The ELC No. 163 of 2014 litigation did not excuse the applicant from honouring her contractual obligations under the charge.
Legal principles established
#- The three Giella conditions are separate, distinct and sequential hurdles that an applicant must surmount; failure at the first disposes of the application.
- Where the charged property secures an ascertainable debt, damages are an adequate remedy and complaints about improper exercise of the power of sale sound in damages under Section 99(4) of the Land Act.
- An applicant for equitable relief must demonstrate equitable conduct.
Court orders
#- 1.Dismissal of the Notice of Motion dated 30th October 2020
- 2.Costs of the application to the 1st Defendant
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court to grant interlocutory injunctions and orders of inhibition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Njeri James v Kenya Commercial Bank Limited & another [2021] KEELC 4591 (KLR)", Case Analysis (2021). Notice of Motion dated 30th October 2020 (Nakuru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4591/eng@2021-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.