Kamanthe v SBM Bank (K) Limited & another
The bottom line
#A Kenyan court allowed SBM Bank to proceed with auctioning a borrower's matrimonial land because she defaulted on a loan secured by a charge over it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success for an interlocutory injunction
No prima facie case established; application dismissed
Applying Giella v Cassman Brown, the court examined the Charge Document of March 30, 2015 under which the Plaintiff covenanted to repay the loan and permitted realisation of security on default. Statements of account showed she remained in arrears. She had not denied the earlier suit by Magenex Investment Ltd challenging repossession, in which indebtedness was acknowledged but never settled, and which was dismissed for want of prosecution. Being in default, she could not resist realisation of the security.
Whether the statutory power of sale had crystallised and notices were duly issued
Yes; the power of sale had crystallised and requisite notices including the Notification of Sale were served
The court found the Plaintiff was served with the requisite statutory notices, including a redemption notice and Notification of Sale, and that nothing stood in the way of the 1st Defendant realising its security. The matrimonial-home character of the land was held irrelevant once the land was charged.
Legal principles established
#- Once land is charged as security, its status as matrimonial property does not prevent a chargee from realising the security upon default
- A borrower in default of contractual obligations under a Charge cannot complain when the chargee's statutory power of sale crystallises
Court orders
#- 1.Notice of motion application dated August 23, 2022 dismissed with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land matters (interlocutory application in an ELC suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamanthe v SBM Bank (K) Limited & another", Case Analysis (2023). Environment & Land Case E066 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17804/eng@2023-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.