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ELCDismissedNotice of Motion dated 16th July, 2021 (ELC, Kajiado)· [2022] KEELC 2029 (KLR)

Son Hardware Limited v Development Bank of Kenya Limited & another [2022] KEELC 2029 (KLR)

Environment and Land Court
24 January 2022
759 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court at Kajiado blocked a property owner's attempt to stop a bank auction, ruling the same fight had already been decided.

What this practically means

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Executive summary

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This is a ruling by M.N. Gicheru J of the Environment and Land Court at Kajiado on a Notice of Motion dated 16th July, 2021 in which the Plaintiff sought an interlocutory injunction restraining the Defendants from registering, presenting for registration or completing the transfer of L.R. NGONG/NGONG/33632, allegedly sold on 6th July, 2021 in exercise of the first Defendant's statutory power of sale. The Plaintiff contended the sale breached Sections 90, 97(2) and 96(2) of the Land Act - no statutory notice, no valuation, no notification of sale - and that the property was sold at a gross undervalue. The Defendants opposed through a preliminary objection on res judicata, noting that an identical application had been dismissed by the High Court at Kajiado in HCCC 44 of 2018 and on appeal in Civil Application No. 3 of 2019 (UR 3/19), and via a replying affidavit of Silas Aluku annexing statutory notices, a valuation report and a certificate of sale. The court agreed the application was res judicata, having been heard and dismissed by a court of equal status on 18/12/2018, and further found the respondents had demonstrated issuance of the requisite statutory notice. The applicant also failed to avail evidence of loan payment. Concluding that no prima facie case with probability of success was established and the balance of convenience did not favour the applicant, the court dismissed the application with costs to the Respondents.

Key legal issues

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01

Res judicata

Holding

The application is res judicata because an identical application was heard and dismissed on merit by the High Court at Kajiado (HCCC 44 of 2018) and on appeal (Civil Application No. 3 of 2019, UR 3/19)

Reasoning

The Plaintiff had previously gone to the High Court to challenge the intended sale of the suit property; that application was dismissed, and an appeal to the Court of Appeal against the dismissal was also dismissed. The court therefore held that re-litigating the same issue before a court of equal status was barred.

p. 2
02

Compliance with statutory pre-sale requirements under the Land Act

Holding

Contrary to the applicant's claim that no statutory notice was served, the respondents demonstrated issuance of the requisite notices (dated 26/7/2017 and 17/11/2017), a valuation report and notification of sale

Reasoning

The first Defendant's legal officer swore a replying affidavit annexing statutory notices, a valuation report dated 17th June, 2021, and a certificate of sale dated 6/7/2021. The court found these demonstrated compliance, contrary to the applicant's assertion that no notice, valuation or notification preceded the auction.

p. 2
03

Test for interlocutory injunction

Holding

The applicant failed to establish a prima facie case with a probability of success, and the balance of convenience did not favour it

Reasoning

Even after being given ample time to avail evidence of payment of the loan, no such evidence was forthcoming. In the absence of a prima facie case and favourable balance of convenience, the injunction sought under Order 40 Rules 1 and 2 could not issue.

p. 2

Legal principles established

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  • A matter already heard and dismissed on merit by a court of equal status is res judicata
  • A chargee who issues the requisite statutory notice before exercising its statutory power of sale demonstrates compliance, defeating a claim of irregular sale

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 16th July, 2021
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Land ActSection 90
  • Land ActSection 96(2)
  • Land ActSection 97(2)
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules

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, "Son Hardware Limited v Development Bank of Kenya Limited & another [2022] KEELC 2029 (KLR)", Case Analysis (2022). Notice of Motion dated 16th July, 2021 (ELC, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2029/eng@2022-01-24

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