Njuguna v Family Bank Limited & another (Environment & Land Miscellaneous Case E271 of 2022) [2023] KEELC 921 (KLR)

Relying on Lydia Nyambura Mbugua v Diamond Trust Bank, the court held that the process by which a chargee exercises statutory power of sale is laid down in the Land Act and Land Registration Act, whose disputes fall to the ELC and empowered subordinate courts. However, the auctioneer's notice itself, issued under the Auctioneers Act, fell outside that jurisdiction.

The applicant had filed only a Notice of Motion in a miscellaneous cause with no main suit. Interlocutory orders exist to preserve the subject matter of a substantive suit pending determination. Relying on Anastacia Wagiciengo v Ezekiel Wafula, the court held such a suit incurably defective and incompetent, and declined to dispose of a substantive suit through an interlocutory application.

The Applicant admitted default and did not dispute the debt or interest. He confirmed receipt of the 2nd Respondent's notice sent to the same postal address used for all statutory notices, undermining his claim of non-service. Without a prima facie case, the other Giella requirements need not be considered. Damages would be adequate as the property is a commercial commodity whose value is ascertainable.