TSS Salt Manufacturers Limited v NIC Bank Limited (Environment & Land Case 144 of 2017) [2021] KEELC 4778 (KLR)
The bottom line
#A Kenyan court refused to jail NCBA bank officers for auctioning salt land, because missing statutory notices voided the sale but no deliberate disobedience was proven.
What this practically means
#Executive summary
#Key legal issues
#Preliminary Objection against the advocate's supporting affidavit
Objection dismissed; an advocate may swear affidavits on non-contentious matters and the Defendant did not specify the contentious averments, which would require a factual inquiry outside a true preliminary objection
Rule 8's proviso permits an advocate to depose to formal or non-contentious facts. A preliminary objection must rest on a pure point of law assuming the other side's facts. The Defendant neither identified the contentious deponents nor sought cross-examination, so the court would have to speculate, which is impermissible in a demurrer-type objection.
Whether the attempted auction of 20th July 2020 breached the 19th April 2018 injunction order
The injunction was conditional on issuance of proper statutory notices; the Defendant only issued a Section 96(2) notice and none under Section 90(2), so its notices were null and void
The 2018 ruling restrained sale until proper notices under Section 96(2) of the Land Act and Rule 15 of the Auctioneers Rules were issued. The only notice issued was the 40-day notice under Section 96(2); no Section 90(2) notice of default was issued, and per Yusuf Abdi Ali such failure renders subsequent notices invalid, null and void ab initio.
Whether the officers should be committed for contempt
No committal: the breach flowed from genuine misinterpretation, not deliberate or mala fide conduct, and no evidence linked the officers to the violation
Committal invokes criminal sanction and requires proof beyond reasonable doubt of wilful, deliberate breach. The Defendant genuinely believed the injunction lapsed upon issuing fresh notices and was mitigating losses on moneys owed. With no personal service on the officers and no mala fides shown, the orders sought were untenable.
Legal principles established
#- Failure to issue a statutory notice under Section 90(2) of the Land Act renders subsequent notices and any exercise of the statutory power of sale null and void
- Contempt must be proved beyond reasonable doubt and the breach must be deliberate and mala fide; good faith avoids the infraction
Court orders
#- 1.The Defendant's Preliminary Objection dated 28th July 2020 is dismissed
- 2.The Plaintiff's Notice of Motion dated 14th July 2020 is dismissed
- 3.No orders as to costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over contempt of its orders issued in Malindi ELC No. 144 and 145 of 2017
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Margaret's Estate Succession Matter (Plaintiff) v Consolidated Bank of Kenya & Another[2020] KEHC 3091 (KLR)24 Sept 2020
Cite this brief
#Cite this brief
Caselaw, "TSS Salt Manufacturers Limited v NIC Bank Limited (Environment & Land Case 144 of 2017) [2021] KEELC 4778 (KLR)", Case Analysis (2021). Malindi ELC No. 144 of 2017 (Contempt application in ELC No. 144 and 145 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4778/eng@2021-08-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.