Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedOriginating Summons dated 25th January 2023· [2024] KEELC 6827 (KLR)

KCB Bank Kenya Limited v La'Paz Holding Limited (Civil Cause E004 of 2023) [2024] KEELC 6827 (KLR)

Environment and Land Court
17 October 2024
6,707 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that banks cannot get permission to sell repossessed land below the forced sale value, striking down a bank's bid and its poorly prepared court documents.

What this practically means

#

Executive summary

#
The Plaintiff chargee bank filed an originating summons dated 25th January 2023 seeking leave to sell charged property, L.R. No. Dagoretti/Mutuini/1220, at the best obtainable price not necessarily above the forced sale value, following two failed public auctions. The Defendant chargor opposed, arguing the chargee owes a statutory duty to obtain the best price reasonably obtainable, that the application was made in bad faith given the bank's closure of the loan account and debiting of default interest, and that the court lacks jurisdiction to authorise an undervalue sale. The Defendant also objected that the annexures to the supporting affidavit were not serialized or sealed in compliance with Rule 9 of the Oaths and Statutory Declaration Rules. The court framed two issues. On the first, it held Rule 9 is mandatory; since the seals and serial marks appeared on loose sheets rather than the annexures themselves, all annexures were expunged and the dependent paragraphs of the affidavit struck out. On the second, the court held that Sections 97(1) and (2) of the Land Act oblige a chargee to obtain the best price reasonably obtainable, with the forced sale valuation constituting the floor price; selling below it is an illegality and breach of trust, and a court cannot grant liberty to circumvent a clear statutory provision. Relying on the Supreme Court's guidance in Republic v Mwangi (ISLA) and the Court of Appeal's Criticos decision, the court dismissed the originating summons as premature and unmeritorious, ordering each party to bear its own costs in light of the Defendant's continuing indebtedness.

Key legal issues

#
01

Compliance of affidavit annexures with Rule 9 of the Oaths and Statutory Declaration Rules

Holding

The annexures were neither serialized nor sealed on the annexures themselves; the seal appeared on a loose separate sheet; they are invalid, inadmissible and were expunged, with corresponding paragraphs struck out

Reasoning

Rule 9 requires exhibits to be securely sealed under the commissioner's seal and marked with serial letters of identification. The court found the seal and serialization were affixed on a loose piece of paper preceding the annexures, rendering them non-compliant with a mandatory provision. Citing Solomon Omwega Omache and Zaheer Jhanda, the court held such exhibits inadmissible, expunged them, and struck out the supporting affidavit paragraphs dependent on them, leaving only skeleton averments.

p. 5
02

Whether the court has jurisdiction to grant liberty to sell charged property at an undervalue

Holding

No. Section 97(1) and (2) of the Land Act fixes the forced sale valuation as the floor; sale below it is an illegality and breach of duty, and the court cannot create a window to facilitate it

Reasoning

The court read Sections 97(1) and (2) of the Land Act as requiring the chargee to obtain the best price reasonably obtainable, discerned from a forced sale valuation which constitutes the floor price. The provision was enacted to curb chargees selling at throwaway prices and then pursuing chargors for balances. Granting leave to sell at an undervalue would amount to legislating from the bench and defeating a clear statutory provision, contrary to the Supreme Court's guidance in Republic v Mwangi (ISLA). The originating summons was dismissed.

p. 10

Legal principles established

#
  • A chargee exercising statutory power of sale owes a duty to obtain the best price reasonably obtainable at the time of sale, discerned from the forced sale valuation, and may not sell below the forced sale value
  • A court of law has no jurisdiction to grant a chargee liberty to sell charged property at an undervalue, as this would facilitate an illegality
  • Annexures to affidavits not sealed and serialized in accordance with Rule 9 of the Oaths and Statutory Declaration Rules are inadmissible and must be expunged, together with the paragraphs underpinned by them
  • Courts must interpret statutes in a manner that does not defeat a clear legislative provision that has not been repealed

Court orders

#
  1. 1.The annexures attached to the affidavit in support of the originating sums be and are hereby expunged from the record of the court
  2. 2.The originating summons dated 25th January 2023 is devoid of merits and is hereby dismissed
  3. 3.Each party shall bear own costs of the suit

Authorities

#

Legislation

  • Land ActSections 90, 96, 97, 98, 104
  • Civil Procedure RulesOrder 37 Rule 4
  • Civil Procedure ActSections 1A, 1B, 3A
  • Oaths and Statutory Declaration RulesRule 9
  • Oaths and Statutory Declaration ActRule 9 (as cited by parties)
  • Constitution of Kenya, 2010Articles 1(3), 95(3), 159(2)(d)
  • Elections (Parliamentary and County Elections) Petition RulesRules 12(3), 12(14)

Cases cited (12)

  • NCBA Bank Kenya PLC v Angran Ltd
    [2021] eKLR
  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri
    [2014] eKLR
  • Patrick Kang'ethe Njuguna & 5 Others v Co-operative Bank Ltd
    [2017] eKLR
  • Criticos v National Bank of Kenya Ltd (as the Successor in business to Kenya National Capital Cooperation Ltd & Another)
    [2022] KECA 541 (KLR)
  • Solomon Omwega Omache & Bosongo Medical Centre Limited v Zachary O Ayieko, Vincent K Ayieko & Lydia Bosibori Momanyi t/a Mainstream Welfare Association
    (Environment & Land Case 124 of 2015) [2016] KEELC 827 (KLR) (6 May 2016) (Ruling)
  • Fredrick Mwangi Nyaga v Garam Investments & Another
    [2013] eKLR
  • Abraham Mwangi v S. O Omboo & Others
    HCCC No. 1511 of 2002
  • Zaheer Jhanda & James F. O. Kenani v Independent Electoral & Boundaries Commission, Julius Meja Okeyo, Richard Nyagaka Tongi & Chris Munga N. Bichage
    (Civil Appeal 33 of 2018) [2018] KECA 432 (KLR) (27 July 2018) (Judgment)
  • Jeremiah Nyangwara Matoke v IEBC & 2 Others
    [2017] eKLR
  • Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae)
    (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment)
  • Patrick Kang'ethe Njuguna, Edward Njuguna Kang'ethe & George James Kang'ethe v Co-operative Bank of Kenya Ltd, Robert Maina Nguru t/a Nguru Auctioneers, Leakey Auctioneers, Joserick Merchants Auctioneers & John Mariara Kigotho
    (Civil Case 50 & 54 of 2016) [2017] KEHC 7505 (KLR) (6 March 2017) (Ruling)
  • Criticos v National Bank of Kenya Limited (as the successor in business to Kenya National Capital Corporation Limited "Kenyac") & another
    (Appeal 80 of 2017) [2022] KECA 870 (KLR) (28 April 2022) (Judgment)
Jurisdiction invoked
Sections 90, 96, 97, 98 and 104 of the Land Act, 2012; Order 37 Rule 4 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "KCB Bank Kenya Limited v La'Paz Holding Limited (Civil Cause E004 of 2023) [2024] KEELC 6827 (KLR)", Case Analysis (2024). Originating Summons dated 25th January 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6827/eng@2024-10-17

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