Webtribe Limited t/a Jambopay v Equity Bank (Kenya) Limited & another (Environment and Land Case Civil Suit E005 of 2021) [2023] KEELC 59 (KLR)
The bottom line
#The Environment and Land Court dismissed a borrower's attempt to block Equity Bank from selling charged land, because the bank followed the required statutory notices and the borrower admitted owing the debt.
What this practically means
#Executive summary
#Key legal issues
#Whether a permanent injunction 'pending the hearing and determination of the suit' is legally tenable
Not tenable - such an order would expire upon judgment, making it an order in futility, and the Plaintiff could not recast the relief via submissions
The court observed that the only substantive prayer was expressly limited to the pendency of the suit, so it would stand extinguished upon delivery of judgment. A permanent injunction is a decree that determines rights post-judgment and outlives the suit. Courts do not act in vanity or futility. The Plaintiff, bound by its pleadings and by Order 2 Rule 6 of the Civil Procedure Rules, could not vary the relief through written submissions without leave to amend.
Whether the 1st Defendant complied with Sections 90 and 96 of the Land Act, 2012 before exercising the statutory power of sale
Complied - demand notice (13/12/2018), statutory notice under s.90(2) (7/11/2019) and 40 days' notice under s.96(2) (5/3/2020) were served with certificates of postage; the exercise of the statutory power of sale was lawful
The 1st Defendant exhibited the notices and certificates of postage showing dispatch to the Plaintiff's last known postal address, which matched the address the Plaintiff itself relied on and never disputed. The Plaintiff filed no further or supplementary affidavit to rebut these averments and was therefore deemed to have admitted them. Its subsequent approach to the bank for indulgence further confirmed receipt of the notices. The intended exercise of the statutory power of sale was accordingly lawful.
Whether equity should intervene where the Plaintiff admits an outstanding debt
No - granting relief to an admittedly defaulting borrower would occasion grave injustice and amount to re-writing the charge
On the Plaintiff's own averments, the loan arrears remained due and owing; the 1st Defendant deposed that the outstanding amount was Kshs 139,156,723.47 with arrears of Kshs 40,309,094. The court held that intervention in favour of a party admittedly in breach of a binding contract would occasion grave injustice, contravene Article 10(2) values, and amount impermissibly to re-writing the terms of the charge instrument.
Legal principles established
#- A party is taken to have admitted the positive averments in an adversary's affidavit where it fails to file a further or supplementary affidavit in response
- An order of permanent injunction is a decree that takes effect upon judgment and cannot be tied to the pendency of a suit; courts do not grant orders that would be rendered otiose
- Parties are bound by their pleadings and cannot depart from them or raise fresh claims through submissions without amendment
Court orders
#- 1.The Plaintiff's suit vide originating summons dated the 9th February 2022 be and is hereby dismissed with costs to the 1st Defendant
- 2.The Temporary orders of Injunction issued on the 21st February 2022 be and are hereby discharged and vacated
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over land charged to the 1st Defendant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Webtribe Limited t/a Jambopay v Equity Bank (Kenya) Limited & another (Environment and Land Case Civil Suit E005 of 2021) [2023] KEELC 59 (KLR)", Case Analysis (2023). Originating Summons dated 9th February 2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/59/eng@2023-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.