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MagistratePartially AllowedBGM CMC ELC NO. 49 OF 2019· [2026] KEMC 550 (KLR)

Munialo v Kenya Industrial Estate (Environment and Land Case 49 of 2019) [2026] KEMC 550 (KLR)

Chief Magistrate's Court (Environment and Land Division), Bungoma
20 August 2026
2,927 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, a borrower of Kshs200,000/= from the Defendant secured by a charge over Bungoma/Tongaren/2690, sued to restrain sale of the charged land and to have accounts taken. He attributed his loan default to a fire that destroyed his Muvumilivu Filling Station in 2012 and a road traffic accident on 6/8/2013, contending he had repaid most of the loan and that the notified arrears figures were unproven, and that any sale should await proper accounting. The Defendant denied the excuses, asserted that statutory notices had been served and that its statutory power of sale had crystallised, and relied on a loan statement showing arrears, praying for dismissal. The court framed four issues: excusability of default, validity of statutory notices, entitlement to reliefs, and costs. It held that the misfortunes did not excuse the default since parties are bound by their contract and courts cannot rewrite contracts; hardship could only justify restructuring subject to the chargee's approval. However, the statutory notice served was found deficient under section 90(2)(v) of the Land Act for failure to inform the Plaintiff of his right to apply to court for relief, rendering it null and void ab initio, so the intended sale could not proceed. The prayer for accounts failed because a loan statement was on record and no refusal of information was shown. Judgment was entered for the Plaintiff on prayers (a) and (c): a mandatory injunction restraining sale or transfer without proper and compliant statutory notices, with costs to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff's loan default was excusable

Holding

Default was inexcusable; fire and road accident misfortunes did not excuse repayment obligations

Reasoning

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.

p. 7
02

Whether the statutory notice served complied with section 90(2) of the Land Act

Holding

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

Reasoning

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.

p. 9
03

Whether the accounts prayer should issue

Holding

Accounts prayer dismissed; the Defendant did not decline to provide information and a loan statement was on record

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 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. 2.Costs of this suit are awarded to the plaintiff

Authorities

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Legislation

  • Evidence ActSections 107-109
  • Land Act Cap 280 Laws of KenyaSections 90, 90(2), 90(2)(v), 96
  • Constitution of Kenya, 2010Article 35(1)(b)

Cases cited (8)

  • Chelule & 237 others v Keduwo & 7 others
    [2026] KEELC 3196 (KLR)
  • Mbau v Equity Bank(K) Limited & 2 others
    [2026] KEHC 2457 (KLR)
  • Wanyama v Malava Financial Services Association
    [2024] KEELRC 1014 (KLR)
  • Karani & another v Kabibi & another (Environment and Land Appeal E040 of 2023)
    [2026] KEELC 3031 (KLR)
  • Kariuki v Family Bank Limited & another
    [2025] KEHC 689 (KLR)
  • National Bank of Kenya Ltd versus Pipeplastic Samkolit (K) Ltd & Another
    CA No. 95 of 1999
  • Palm Dream Homes Limited & 2 Others -v- Nyokabi (Environment and Planning Civil Case E004 of 2024)
    [2026] KEEL 5273 (KLR)
  • Harun Mutwiri - Nairobi City County Government
    (2018) eKLR
Jurisdiction invoked
Original civil suit over charged land; Environment and Land jurisdiction of the magistrates' court (Section 90, Land Act, Cap 280)

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, "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.