Sumac Microfinance Bank Limited v Nderitu (Environment and Land Appeal E15 of 2021) [2022] KEELC 2715 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Entitlement to a temporary injunction
The trial magistrate properly found no prima facie case; once that failed, the injunction should have been refused notwithstanding balance of convenience
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.
Service of statutory notices under the Land Act
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
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.
Duty of a first appellate court
The court is under a duty to re-evaluate the evidence and material placed before the subordinate court
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.
Legal principles established
#- 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
#- 1.Appeal allowed
- 2.Ruling and injunctive order issued by Hon. Eunice Kelly (SRM) on 4th June 2021 set aside
- 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.Costs of the appeal awarded to the Appellant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.