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ELCPartially AllowedNakuru ELC No. E14 of 2021 (Appeal)· [2022] KEELC 2715 (KLR)

Sumac Microfinance Bank Limited v Nderitu (Environment and Land Appeal E15 of 2021) [2022] KEELC 2715 (KLR)

Environment and Land Court
26 July 2022
3,424 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a bank to proceed with selling charged land after serving a proper notice, stressing injunctions require all three legal tests to be met.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nakuru against the ruling of Hon. Eunice Kelly (SRM) delivered on 4th June 2021 in Nakuru ELC No. E14 of 2021, whereby the trial magistrate granted the respondent (plaintiff/chargor) an interlocutory injunction restraining the appellant bank (chargee) from attaching, selling, transferring, alienating or interfering with land parcel Kiambogo/Kiambogo Block 2/11263 (Mwariki) pending the hearing of the main suit. The respondent had sued to stop an intended auction of the charged property, contending the statutory notices were not served. The trial magistrate found the section 90(2) statutory notice was not served and granted the injunction on the basis of balance of convenience. The appellant appealed on five grounds, principally that the magistrate granted an injunction despite finding no prima facie case, contrary to the sequential application of the Giella v Cassman Brown test. J M Mutungi J, applying Selle v Associated Motor Boat Co. Ltd, re-evaluated the evidence. He held that service of the section 90 statutory notice was proved by certificate of postage, but there was doubt regarding service of the notice to sell under section 96(2) absent a certificate of posting. Nonetheless, since the respondent had failed to establish a prima facie case with probability of success, the trial magistrate ought not to have granted the injunction. The court allowed the appeal, set aside the ruling and injunctive order, and permitted the appellant to sell the charged property upon serving a proper section 96(2) notice and complying with Rule 15 of the Auctioneers Rules, with costs of the appeal awarded to the appellant.

Key legal issues

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01

Entitlement to a temporary injunction

Holding

The trial magistrate properly found no prima facie case; once that failed, the injunction should have been refused notwithstanding balance of convenience

Reasoning

The court restated the Giella test as restated in James Njoro Kibutiri v Kenya Shell and held that the three conditions are sequential hurdles. The trial magistrate had herself found that the respondent failed to establish a prima facie case with probability of success, and thus ought not to have granted an injunction on the balance of convenience alone, save for compliance with section 96(2) notice.

02

Service of statutory notices under the Land Act

Holding

Service of the section 90 notice was properly proved by certificate of postage, but there was doubt whether the notice to sell under section 96(2) was served absent a certificate of posting

Reasoning

The notices sent by registered post bore the respondent's address as per the loan agreement and affidavit of civil status (P.O Box 508-20106 Molo), with a certificate of postage for the statutory notice. The Notice of Intention to Sell lacked a certificate of postage and the email address used was misspelt. Nonetheless, the court was satisfied the respondent had proper notice of the intention to exercise the power of sale.

p. 6
03

Duty of a first appellate court

Holding

The court is under a duty to re-evaluate the evidence and material placed before the subordinate court

Reasoning

Relying on Selle & Another v Associated Motor Boat Co. Ltd, the court noted that an appeal is by way of retrial: it must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.

p. 4

Legal principles established

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  • Where a chargor alleges statutory notices were not served, the burden shifts to the chargee to prove service, e.g. by certificate of postage for registered mail
  • All three Giella conditions for a temporary injunction must be met; failure of one disentitles the applicant, and the conditions are to be surmounted sequentially

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling and injunctive order issued by Hon. Eunice Kelly (SRM) on 4th June 2021 set aside
  3. 3.If the appellant serves a proper Notice to sell under section 96(2) of the Land Act and complies with Rule 15 of the Auctioneers Rules, the appellant will be at liberty to sell the charged property
  4. 4.Costs of the appeal awarded to the Appellant

Authorities

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Legislation

  • Land ActSection 90(1) & (2)
  • Land ActSection 96(1) & (2)
  • Land Act 2012Sections 90(2), 96(2)
  • Auctioneers RulesRule 15

Cases cited (9)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Limited vs Jan Bonde Nielson & 2 Others
    [2014] eKLR
  • Total Kenya Limited v David Njane T/A Argwings Twin Service Station & 2 Others
    [2018] eKLR
  • Albert Mario Cordeiro & another vs Vishram Shamji
    [2015] eKLR
  • Selle & Another -vs- Associated Motor Boat Co. Ltd & others
    (1968) EA 123
  • James Njoro Kibutiri -vs- Kenya Shell, Nairobi High Court, Civil Case No.3398 of 1980
    (1981) eKLR
  • E.A Industries -vs- Trufoods
    (1972) EA 420
  • Mrao Ltd -Vs- First American Bank of Kenya Limited and 2 Others
    [2003] eKLR
  • Moses Kibiego Yator -vs- Eco Bank Kenya Limited NKU E&L No. 426 of 2013
    [2014] eKLR
On appeal from
Chief Magistrate's Court at Nakuru (ELC No. E14 of 2021)
Nakuru ELC No. E14 of 2021
Jurisdiction invoked
First appeal from the subordinate court to the Environment and Land Court under the ELC's appellate jurisdiction

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, "Sumac Microfinance Bank Limited v Nderitu (Environment and Land Appeal E15 of 2021) [2022] KEELC 2715 (KLR)", Case Analysis (2022). Nakuru ELC No. E14 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2715/eng@2022-07-26

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