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ELCDismissedELC Case No. E175 of 2023 (Notice of Motion dated 1st November 2023)· [2025] KEELC 2849 (KLR)

Mohammed v DIB Bank Kenya Limited & 3 others (Environment & Land Case E144 & E175 of 2023 (Consolidated)) [2025] KEELC 2849 (KLR)

Environment and Land Court
25 March 2025
2,760 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that once property is sold at auction, the borrower's rights are extinguished and injunctions cannot restore them.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Title Number Nairobi Block 104/389, moved the Environment and Land Court in Nairobi by Notice of Motion dated 1st November 2023 seeking interlocutory injunctions restraining the 2nd and 3rd Defendants from interfering with his possession, an injunction against the 2nd Defendant charging, selling or transferring the property, and an order compelling the 3rd Defendant (tenant) to pay rent to court. He alleged an illegal public auction on 24th November 2021 by the 1st Defendant bank, claiming lack of statutory notices, absence of valuation, undervalue sale and an attempt to charge the property to Gulf African Bank. The 1st Defendant showed the Plaintiff defaulted on a loan of Kshs.26,800,000, statutory notices issued, and the 2nd Defendant bought at auction for Kshs.26,550,000. The 2nd and 3rd Defendants raised a preliminary objection on sub judice and jurisdiction and argued no prima facie case; the 4th Defendant filed grounds of opposition. Applying Giella v Cassman Brown and Mrao Ltd, Justice Christine Ochieng held the Plaintiff's equity of redemption was extinguished at the fall of the hammer, that he failed to establish a prima facie case, and, following Nguruman, declined to consider the other injunction limbs. She also declined to compel rent payments to court since the 2nd Defendant, as registered owner, is entitled to the rent. The application was dismissed with costs on 25th March 2025.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for interlocutory injunction

Holding

No prima facie case was established; the property had been validly sold at auction and the 2nd Defendant is registered proprietor

Reasoning

The court found the Plaintiff charged the suit land, defaulted and sought restructuring, and the 1st Defendant exercised its statutory power of sale, selling to the 2nd Defendant at public auction. The court applied Giella v Cassman Brown and Mrao Ltd v First American Bank, and authorities on exercise of statutory power of sale, holding that a chargor aggrieved by the conduct of the sale is limited to damages.

02

Whether the 3rd Defendant should be compelled to pay rent to court

Holding

Declined; the 2nd Defendant as registered owner is entitled to the rent

Reasoning

The court held that the 2nd Defendant, having purchased at auction and being the registered proprietor with an active tenancy with the 3rd Defendant, is entitled to receive rent. Whether the auction was properly conducted could only be determined after viva voce evidence, but on the facts the mandatory-type order sought could not issue.

p. 5

Legal principles established

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  • Once property is knocked down and sold at a public auction in exercise of a chargee's statutory power of sale, the chargor's equity of redemption is extinguished and the remedy is in damages
  • If a party fails to establish a prima facie case, irreparable injury and balance of convenience need not be considered

Court orders

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  1. 1.Notice of Motion application dated the 1st November 2023 dismissed
  2. 2.Costs of the application awarded to the Defendants

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)(d)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 Rule 1; Order 51 Rule 1
  • Land ActStatutory notice of sale provisions (general reference)
  • Auctioneers ActGeneral reference
  • Constitution of Kenya 2010Article 40

Cases cited (11)

  • Giella v Cassman Brown and Co. Ltd
    [1973] EA 358
  • Andrew Muriuki Wanjohi v Equity Building Society Ltd & 2 others
    [2006] eKLR
  • Caliph Properties Limited v Barbel Sharma & another
    [2015] eKLR
  • Hezron Kamau Gichuru v Kianjoya Enterprises Ltd & another
    [2022] eKLR
  • Agnes Muthoni Nyanjui & Others v Anna Nyambura & 3 Others
    [2015] eKLR
  • Mrao Ltd v First American Bank Limited
    (2003) eKLR
  • Amazing Tours and Travel Limited v Housing Finance Company Limited & 2 Others
    [2020] eKLR
  • Palmy Company Limited v Consolidated Bank of Kenya Limited
    ML HCCC No. 527 of 2013 [2014] eKLR
  • Simon Njoroge Mburu v Consolidated Bank of Kenya Ltd
    [2014] eKLR
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    (2014) eKLR
  • Zainabesh Hassan Debebe v Hussein Ibrahim Mohammed & Another (DIB Bank Limited, Interested Party)
    Nairobi ELC No. 120 of 2020
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Mohammed v DIB Bank Kenya Limited & 3 others (Environment & Land Case E144 & E175 of 2023 (Consolidated)) [2025] KEELC 2849 (KLR)", Case Analysis (2025). ELC Case No. E175 of 2023 (Notice of Motion dated 1st November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2849/eng@2025-03-25

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