Kenya Commercial Bank Limited & another v Isha Mohamed Noor [2019] KECA 469 (KLR)
The bottom line
#Kenya's Court of Appeal stopped a bank from auctioning a widow's home because she was never served proper statutory notices before the sale.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge of the Environment and Land Court properly exercised his discretion in granting an interim injunction restraining the appellants from selling the suit properties
- 2.Whether the 1st appellant was under a statutory obligation to serve notices on the respondent prior to exercising its statutory power of sale
- 3.Whether the suit properties were matrimonial properties of the respondent
- 4.Whether the 2nd appellant, as a disclosed agent of the 1st appellant, should have been excluded from the injunction
Key legal issues
#Test for interference with exercise of judicial discretion on appeal
The Court will not upset a discretionary decision unless the judge misdirected himself and arrived at a wrong decision, or it is manifest the judge was clearly wrong and injustice has arisen. The Judge here exercised discretion on sound reasons.
The Court adopted the Mbogo v Shah principle as settled. It examined whether the Judge erred in granting the interim injunction and concluded that he weighed the rival positions against the law, found a prima facie case and that the balance of convenience favoured the injunction, exercising his discretion on sound reason rather than whim, caprice or sympathy. The appeal therefore failed on the central issue of discretion.
Whether the respondent had a prima facie case to be served with notice before sale of the suit properties
Yes. As administrator of the deceased's estate, the respondent was entitled to be served with notice prior to the advertisement of sale of the suit properties, supporting the injunction.
Applying the Mrao Ltd definition of a prima facie case, the Court was satisfied that the respondent, as administrator of the estate, had shown an apparently infringed right to notice before the sale by public auction of the charged matrimonial properties. The Court declined to resolve conflicting evidence on photographs and valuation reports, holding such conflicts are for trial, consistent with American Cyanamid and Mbuthia v Jimba Credit Finance Corporation.
Spousal consent requirements under the Land Act, 2012
The Court did not fault the Judge's appreciation that the charges, registered before commencement of the Land Act, were not vitiated by absence of spousal consent; the requirement to obtain a spouse's consent applies only to charges created after the Act commenced.
The appellants argued the Land Laws (Amendment) Act, 2016 could not apply retrospectively to charges registered in 2009-2010. The Court agreed with the Judge that the charges predated the Land Act's consent requirement, but held this did not absolve the chargee from the obligation to serve proper statutory notices, and the Judge had expressed only doubts on the consent issue which were properly left for trial.
Nature and scope of the injunction granted
The injunction was not open-ended; the chargee remained free to exercise its statutory power of sale once proper notices were issued and the debt remained outstanding, and the balance of convenience favoured the injunction.
The Court found the balance of convenience titled in favour of granting the injunction and endorsed the Judge's qualification of the order, which preserved the bank's ability to realise its security upon issuance of proper statutory notices. This preserved both the respondent's right to notice and the bank's statutory power of sale, rendering the discretion properly exercised.
Non-disclosure of ELC No. 2 of 2016 and liability of the 2nd appellant as disclosed agent
These contentions did not persuade the Court; the appeal as a whole lacked merit and was dismissed, with no separate finding disturbing the injunction as against either appellant.
The appellants argued the respondent was guilty of material non-disclosure of the earlier suit and that the 2nd appellant was a disclosed agent who should have been struck out of the application. The Court, having found the discretion properly exercised and a prima facie case of entitlement to notice made out, found no basis to interfere and dismissed the appeal with costs.
Legal principles established
#- An appellate court will only interfere with the exercise of judicial discretion where the judge misdirected himself and arrived at a wrong decision, or where it is manifest from the case as a whole that the judge was clearly wrong and injustice has arisen
- A court seized of an interlocutory injunction application must not make final determinations on conflicting affidavit evidence
- A prima facie case in a civil application is a genuine and arguable case showing an apparently infringed right calling for explanation or rebuttal
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Malindi
- E.L.C Civil Case No. 240 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Environment and Land Court (Constitution of Kenya, Article 164; Court of Appeal Act)
Relief refused
#Adjournment of the plenary hearing sought by the respondent's counsel
Counsel on record had not complied with directions to file written submissions issued on 27th March 2019, a month prior
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end, we think we have said enough to demonstrate that the appeal herein lacks merit and is hereby dismissed with costs to the respondent.
before we can upset the discretion, we must be satisfied that the learned Judge misdirected himself in some matter and as a result arrived at a wrong decision; or that it was manifest from the case as a whole that the learned Judge was clearly wrong in the exercise of his discretion and injustice has arisen
It is trite that whenever a court is seized of interim applications, such as in this case, it has no business to make final determinations on the conflicting affidavit evidence
we are satisfied that the respondent had made out a prima facie case that as an administrator of the estate of the deceased she was entitled to be served with a notice prior to the advertisement of sale of the suit properties
As it is not denied however that the borrower is in default, the 1st Defendant shall be free to exercise its Statutory Power of sale once proper notices are issued to the Plaintiff, if thereupon, the debt shall remain outstanding.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank Limited & another v Isha Mohamed Noor [2019] KECA 469 (KLR)", Case Analysis (2019). Civil Appeal No. 22 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/469/eng@2019-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.