Munialo v Kenya Industrial Estate (Environment and Land Case 49 of 2019) [2026] KEMC 550 (KLR)
The bottom line
#A Kenyan bank was blocked from selling a borrower's charged land because its statutory notice omitted the borrower's right to seek court relief.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's loan default was excusable
Default was inexcusable; fire and road accident misfortunes did not excuse repayment obligations
The Plaintiff admitted default and blamed an accidental fire at his petrol station and a road traffic accident. The court held he had to prove he notified the Defendant, and even if notified, these occurrences did not excuse contractual repayment. At most they could justify a restructuring subject to the Defendant's approval, and the Plaintiff's letter sought a top-up loan, not restructuring. The court cannot rewrite the contract.
Whether the statutory notice served complied with section 90(2) of the Land Act
The statutory notice was deficient for failure to specify the chargor's right to apply to court for relief, rendering it null and void ab initio
Section 90 of the Land Act requires a chargee to serve a written notice specifying the nature and extent of default, amounts payable, consequences, and the chargor's right to apply to court for relief. Upon perusal, the notice served omitted the right-to-relief requirement under section 90(2)(v), so the statutory power of sale never properly accrued and the intended sale was invalidated.
Whether the accounts prayer should issue
Accounts prayer dismissed; the Defendant did not decline to provide information and a loan statement was on record
The court found that under Article 35(1)(b) the Defendant had a duty to provide information, but the Plaintiff failed to show any refusal. A loan statement was already on record showing the amount due and its application, so there was no basis for an order of accounts.
Legal principles established
#- A statutory notice under section 90(2) of the Land Act that fails to inform the chargor of the right to apply to court for relief is null and void ab initio
- Misfortunes such as fire or accident do not excuse a chargor from loan repayment obligations; at most they may justify restructuring subject to the chargee's approval
- Courts cannot rewrite contracts for parties
- He who alleges must prove; the burden of proof remains on the party asserting a fact even where the case is not defended
Court orders
#- 1.A mandatory injunction be and is hereby issued restraining the Defendant, their agents, and or servants from selling and transferring the plaintiff's parcel of land known as BUNGOMA/ TONGAREN/2690 without issuing proper and compliant statutory notices
- 2.Costs of this suit are awarded to the plaintiff
- Jurisdiction invoked
- Original civil suit over charged land; Environment and Land jurisdiction of the magistrates' court (Section 90, Land Act, Cap 280)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munialo v Kenya Industrial Estate (Environment and Land Case 49 of 2019) [2026] KEMC 550 (KLR)", Case Analysis (2026). BGM CMC ELC NO. 49 OF 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/550/eng@2026-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.