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Case Brief · caselaw.co.ke
High CourtDismissedEldoret High Court Civil Appeal (from Eldoret CM Civil Suit No. E265A of 2022)· [2024] KEHC 155 (KLR)

Kasim Shaban Kombo v Kenya Commercial Bank Limited & Another

High Court of Kenya
19 January 2024
7,623 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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The High Court in Eldoret allowed a bank to proceed toward auctioning a borrower's property because the borrower stopped repaying and could not prove the bank's notices were defective.

What this practically means

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Executive summary

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This was an application under Order 42 Rule 6(6) of the Civil Procedure Rules seeking an interlocutory injunction pending appeal against the ruling of the Eldoret Chief Magistrate's Court (Civil Suit No. E265A of 2022) which had declined to restrain the 1st Respondent bank from exercising its statutory power of sale over the Appellant's property, Pioneer/Ngeria Block 1 (EATEC)/973. The Appellant, Kasim Shaban Kombo, alleged non-compliant statutory notices under Sections 90 and 96 of the Land Act, 2012, that simultaneous service of the redemption notice and notification of sale clogged his right of redemption under Section 89, that interest rates were varied without notice under Section 84, and that the bank withheld about Kshs 800,000/- of the loan. The bank countered that all notices were duly served with certificates of postage, the loan was in colossal arrears, and the alleged withheld disbursement was in fact an interest reversal. Anuro J framed one broad issue: whether a temporary injunction should issue pending appeal. Applying Giella v Cassman Brown, the court found no prima facie case: the notices were substantially compliant, the concurrent service of the two notices was not unlawful, the loan was in undisputed arrears with no payments since 12/03/2020, and the alleged disbursement was described as 'interest reversal-induplum adjustment'. The court further found damages adequate and the balance of convenience favoured the chargee. The Notice of Motion dated 25/05/2023 was dismissed with costs in the cause.

Key legal issues

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01

Whether the Appellant established a prima facie case with a probability of success on appeal

Holding

No prima facie case established; the notices appeared substantially compliant and the loan was in undisputed colossal arrears

Reasoning

The court examined the loan contract, the statutory notices under Sections 90 and 96 of the Land Act and the Auctioneers' Rules, found the notices substantially compliant despite negligible contradictions, and noted the Appellant did not deny default and had made no payments since 12/03/2020. Granting an injunction would amount to rewriting the parties' express contract.

p. 11
02

Whether simultaneous service of the 45 days' redemption notice and 14 days' notification of sale is unprocedural or a clog on the right of redemption

Holding

Concurrent service of the two notices is not a sufficient ground for an interlocutory injunction at this stage

Reasoning

Relying on the persuasive reasoning of Ombwayo J in Simon Kipkoech Kwambai v Sidian Bank, the court found the two notices are separate and distinct, provided for under different legislation, and can be issued concurrently; the final verdict awaits the trial court.

p. 9
03

Whether irreparable injury and balance of convenience favoured the Appellant

Holding

Both limbs failed; the loss was compensable in damages and the balance of convenience favoured the chargee

Reasoning

Once property is offered as security it becomes a commodity for sale whose loss is compensable in damages; the 1st Respondent, a large financial institution, was not shown incapable of compensating. Stopping the sale would allow the debt to grow, exposing the chargee to substantial irrecoverable losses.

p. 12
04

Whether the 1st Respondent withheld part of the loan disbursement and varied interest rates without notice

Holding

Not established at this stage; the alleged disbursement was described as 'interest reversal-induplum adjustment' and no evidence of interest variation was adduced

Reasoning

The bank statement described the Kshs 827,341.75 payment as an interest reversal, not a loan disbursement, so it could not be treated as an admission of fault. The Appellant made allegations on interest variation without evidence; determination awaits the full trial.

p. 10

Legal principles established

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  • A chargee bears the burden of proving service of statutory notices; where receipt is not admitted, posting must be proved
  • A dispute as to the amount due or interest rate is not, per se, a ground to restrain a chargee's statutory power of sale
  • Courts cannot rewrite contracts between parties
  • If no prima facie case is established, irreparable injury and balance of convenience need not be considered

Court orders

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  1. 1.The Appellant's Notice of Motion dated 25/05/2023 is hereby dismissed
  2. 2.Costs shall be in the Cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(6)
  • Civil Procedure Rules, 2010Order 40(1)(a) and (b)
  • Land Act, 2012Section 90(1) and (2)
  • Land Act, 2012Section 96(2)
  • Land Act, 2012Section 89
  • Land Act, 2012Section 84
  • Auctioneers' Rules, 1997Rule 15(d)
  • Auctioneers' Rules, 1997Rule 25(e)
  • Interpretation and General Provisions Act, Cap 2Section 3(5)

Cases cited (25)

  • Patricia Njeri & 3 Others vs National Museum of Kenya
    [2004] eKLR

    Guiding principles for injunction pending appeal

  • Giella vs Cassman Brown
    (1973) EA 358

    Conditions for grant of interlocutory injunctions

  • Nguruman Limited versus Jan Boden Nielsen & 2 Others
    (2014) eKLR

    Three sequential hurdles for injunctions; failure of one ends the inquiry

  • Surya Holdings Limited & 4 Others v ICICI Bank Limited & Another
    [2015] eKLR

    Variation of loan terms and disbursement obligations

  • Mea Limited v Echuka Farm Limited & 2 Others
    [2007] eKLR

    Chargee's obligations in exercising statutory power of sale

  • Joseph Siro Mosioma v Housing Finance Company of Kenya & 3 Others
    [2008] eKLR

    Restraint of statutory power of sale

  • Raphael Mulinge Muthusi & 2 Others v Mary Ndila Nyolo
    [2022] eKLR

    Principles for injunction pending appeal

  • Jim Kennedy Kiriro Njeru vs Equity Bank (K) Limited
    [2019] eKLR

    Dispute on amount/interest not a ground to restrain sale; borrower should continue repaying

  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 123

    Definition of prima facie case; dispute on interest rate not a ground for injunction

  • Algahussein Establishment v Eton College
    [1991] 1 ALL ER 267

    A party in breach cannot seek injunction to defeat contractual rights

  • Imperial Health Sciences Kenya Limited v Wiseway Freighters Limited
    [2018] eKLR

    Quoting Algahussein Establishment v Eton College

  • Naftali Ruthi Kinyua vs Patrick Thuita Gachure & Another
    [2015] eKLR

    Unclean hands disentitles a party to equitable orders

  • Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited
    [2001] eKLR

    Loss from sale of offered security is compensable in damages

  • Stek Cosmetics Limited v Family Bank Limited & Another
    [2020] eKLR

    Injunction principles in chargee/borrower disputes

  • Stanbic Bank & Another v Martin Tumaini Ngala
    [2018] eKLR

    Damages as adequate remedy against a chargee

  • American Cyanamid Co. v Ethicon Limited
    (1975) AC 135

    Elements of the interlocutory injunction test

  • Mbuthia vs Jimba Credit Finance Corporation & Another
    [1988] KLR 1

    Court should not decide issues of fact on interlocutory injunction applications

  • Nyagilo Ochieng & Another v Kenya Commercial Bank Limited
    [1996] eKLR

    Burden of proving service of statutory notices

  • Simon Kipkoech Kwambai v Sidian Bank Limited & another
    [2018] eKLR

    Redemption notice and notification of sale can be issued concurrently

  • Priscillah Krobought Grant v Kenya Commercial Finance Co. Ltd. and 2 Others
    Civil Application No. Nai 227 of 1995 (108/95 V.R) (unreported)

    No injunction to restrain mortgagee solely on dispute as to amount due

  • Barmal Kanji Shah & Another v Shah Depar Devji
    [1965] E.A. 91

    Dispute as to amount due under mortgage not a ground for injunction

  • Uhuru Highways Development Ltd v Central Bank Kenya and 2 Others
    Civil Application No. Nai 140 of 1995 (unreported)

    Same proposition per Kwach J.A.

  • National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd
    [2002] 2 E.A. 503, [2011] eKLR

    A court of law cannot rewrite a contract between the parties

  • Kenya Commercial Finance Co. Ltd v Afraha Education Society
    [2001] Vol. 1 EA 86

    Three conditions applied as sequential hurdles

  • Andrew Muriuki Wanjohi v Equity Building Society Ltd & 2 others
    [2006] eKLR

    Balance of convenience favours chargee where debt may outstrip security value

On appeal from
Eldoret Chief Magistrate's Court
Civil Suit No. E265A of 2022
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules 2010 (appellate jurisdiction to grant temporary injunction pending appeal)

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, "Kasim Shaban Kombo v Kenya Commercial Bank Limited & Another", Case Analysis (2024). Eldoret High Court Civil Appeal (from Eldoret CM Civil Suit No. E265A of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/

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