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ELCDismissedNotice of Motion dated 16th February 2023 (suit number not stated in judgment)· [2024] KEELC 1024 (KLR)

Kimotho & another v Family Bank Limited & another (Environment & Land Case 10 of 2023) [2024] KEELC 1024 (KLR)

Environment and Land Court
29 February 2024
JOJ. O. Olola
1,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Nyeri ruled that adult children cannot stop a bank from selling their father's charged land without proving their own legal interest.

What this practically means

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Executive summary

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By a Notice of Motion dated 16th February 2023, Leah Wambui Kimotho and Joram Mung'uri Maina, described as the daughter and son of the chargor Maina Mung'uri, sought a temporary injunction restraining Family Bank Limited and Digit Auctioneers from advertising, selling, alienating or otherwise dealing with parcel Mahiga/Kihome/1022, and a declaration that the public auction of 7th February 2023 was irregular, illegal and unprocedural. They asserted the land was their ancestral land charged to the Bank as security for a loan to Ephantus Mugo Karani without their knowledge or consent, and that no mandatory statutory notice preceded the auction. The Defendants replied that the auction did not proceed for lack of a serious bidder, that all requisite notices were issued to the chargor, and that the adult children of a chargor have no locus standi and need not consent to a charge. Applying the Giella -vs- Cassman Brown conditions and the Mrao definition of a prima facie case, the court found the Plaintiffs had exhibited no evidence of paternity or interest in the land, that statutory notices (90 days and 40 days) were duly served on the chargor, and that no law requires a chargor to obtain his children's consent before charging his registered property. Following Oganga -vs- Orangi, the court held the Plaintiffs had no prima facie case and would suffer no irreparable loss not compensable in damages. The Motion was dismissed with costs to the Defendants on 29th February 2024.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

Children of a chargor who neither hold title nor exhibited proof of their relationship or interest in the land have no prima facie case against a chargee exercising its statutory power of sale

Reasoning

The court applied the Giella test and Mrao definition of a prima facie case. The Plaintiffs produced no evidence of paternity or that the suit land was ancestral land. The chargor never challenged the recovery process, statutory notices were issued to the chargor, and no law requires a chargor to obtain his children's consent before charging his own registered land.

p. 4
02

Irreparable injury

Holding

Plaintiffs failed to demonstrate they had invested in the property or would suffer damage not adequately compensable by damages

Reasoning

Having failed on the first Giella condition, the court found the second limb equally unsatisfied. The Plaintiffs had no demonstrated proprietary interest in the suit property and thus stood to suffer no injury beyond what an award of damages could remedy.

p. 4

Legal principles established

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  • A chargor is not required to obtain the consent of his adult children before charging property registered in his name
  • A chargee need not serve the statutory notice of sale on persons who are neither the registered proprietors nor the chargor

Court orders

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  1. 1.The Motion dated and filed on 16th February 2023 is dismissed
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Statutory notices under the charged land recovery regime (90 days' Statutory Notice of Sale and 40 days' Notice of Intention to Sell)not specified

Cases cited (3)

  • Giella -vs- Cassman Brown & Company Limited
    (1973) EA 358
  • Mrao -vs- First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Oganga & Another -vs- Orangi & 3 Others
    (2023) KEELC 16348 (KLR)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (provision not stated in the judgment)

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, "Kimotho & another v Family Bank Limited & another (Environment & Land Case 10 of 2023) [2024] KEELC 1024 (KLR)", Case Analysis (2024). Notice of Motion dated 16th February 2023 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1024/eng@2024-02-29

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