Joseph Kaimenyi Marete v Pitchcare Marketing Division & 2 others [2022] KEELC 1956 (KLR)
The bottom line
#A Kenyan guarantor stopped his land from being auctioned because the bank sent statutory notices to the wrong address.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a charge/guarantee dispute characterized as commercial
The ELC has jurisdiction; the dispute falls under Sections 78-106 of the Land Act and Sections 56-59 and 101 of the Land Registration Act.
Article 162(b) and Section 13(2) of the ELC Act confer jurisdiction over contracts and instruments granting enforceable interests in land. The dispute implicates statutory notices, charges, and equity of redemption under the Land Act. The authority relied on by the 2nd defendant (Cooperative Bank v Kangethe Njuguna) dealt purely with taking of accounts, per Munyao J in Margaret Muthoni Njoroge v Housing Finance.
Review of orders of 19.7.2021
Review refused; no prejudice since only prayer 2 was allowed and the application remained pending.
The 2nd defendant had entered appearance (memorandum dated 23.4.2021, filed 15.7.2021) and did not dispute service, yet offered no explanation for absence on 19.7.2021. Only prayer 2 of the injunction application had been allowed; the rest remained for determination, so the alleged new evidence caused no prejudice.
Temporary injunction against exercise of statutory power of sale
Injunction granted; service of statutory notices to the wrong postal address raised a bona fide issue on the regularity of the exercise of the power of sale.
Applying the Giella principles, the applicant established a prima facie case. Though he executed the charge and guarantee, the statutory notices were posted to the principal debtor's address rather than the guarantor's address held by the bank, with no explanation. The chargee bore the burden of proving due notification, which it failed to discharge.
Legal principles established
#- Where a chargor alleges non-receipt of a statutory notice, the burden shifts to the chargee to demonstrate that the statutory notice was served upon the chargor.
- The ELC has jurisdiction over disputes concerning charges, guarantees over land and exercise of statutory power of sale under the Land Act and Land Registration Act.
Court orders
#- 1.Preliminary objection dismissed with costs
- 2.Application dated 27.9.2021 (review) dismissed with no orders as to costs
- 3.Temporary injunction orders sought in the application dated 16.4.2021 granted
- 4.Plaintiff to comply with Order 11 within 45 days and set the main suit down for hearing within six months, failing which the orders shall stand vacated
- Jurisdiction invoked
- Article 162(b) of the Constitution as read with Section 13(2) of the Environment and Land Court Act 2011
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.
- Salat v Kanuli Information Technology Solutions Limited & 4 others (Environment and Land Case E045 of 2025) [2026] KEELC 3098 (KLR)[2026] KEELC 3098 (KLR)21 May 2026
Cite this brief
#Cite this brief
Caselaw, "Joseph Kaimenyi Marete v Pitchcare Marketing Division & 2 others [2022] KEELC 1956 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1956/eng@2022-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.