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ELCDismissedNotice of Motion dated 9.11.2016, filed 10.11.2016 (suit number not stated in judgment)· [2019] KEELC 4822 (KLR)

Shalom Agencies Limited & another v Family Bank Limited [2019] KEELC 4822 (KLR)

Environment and Land Court
30 January 2019
2,506 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court ruled borrowers who admit default cannot stop a bank from selling their land unless they pay the disputed amount into court.

What this practically means

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Executive summary

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This was a Notice of Motion dated 9 November 2016 brought by the plaintiffs, Shalom Agencies Limited and Remjus Nyakina Otieno, against Family Bank Limited, seeking temporary injunctive relief restraining the bank from selling two charged parcels (SIAYA/PAP ORIANG/1242 and EAST ALEGO/PAP ORIANG/1391), an order for a statement of account or taking of accounts, and costs. The dispute arose from a tripartite arrangement in which the bank, secured over the plaintiffs' parcels, guaranteed the first plaintiff's dealings with Nation Media Group to the tune of Kshs 4,000,000. When that deal collapsed, the bank paid the third party under the guarantee and demanded repayment from the applicants, who conceded default but sought rescheduling. The applicants relied on Giela v Cassman Brown, arguing a prima facie case, irreparable loss (the second applicant's matrimonial home and livelihood), and balance of convenience. The court applied Halsbury's Laws Vol. 32 para 725, holding that a mortgagee will not be restrained from exercising the power of sale merely because the amount is in dispute or the mortgagor objects to the manner of sale; restraint requires payment of the amount claimed into court or a prima facie excessive claim. The court also held that a property offered as security, even a matrimonial home, stands the risk of sale on default and its loss is compensable in damages, and that rescheduling is a matter for voluntary negotiation which the court cannot compel. Finding the application entirely without merit, the court dismissed it with costs to the defendant.

Key legal issues

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01

Whether a temporary injunction should issue where default is admitted

Holding

No; where default is admitted or demonstrated, a restraining order cannot issue unless the amount owing is paid into court or is prima facie excessive

Reasoning

The court applied the Halsbury's Laws of England Vol. 32(4th Edn) para 725 principles, noting the applicants conceded default, did not pay the amount claimed into court, and did not demonstrate that the amount claimed was excessive. The statutory power of sale had arisen and all requisite notices had been served.

p. 3
02

Whether the matrimonial home/livelihood argument amounts to irreparable loss

Holding

No; property offered as security, even a matrimonial home, is offered on the undertaking that it may be sold on default, and its loss is calculable and compensable in damages

Reasoning

Relying on Wycliffe Mutali Okwaro v Kenya Women Micro Finance Bank (citing Maltex Commercial Supplies v Euro Bank) and Andrew Muriuki Wanjohi v Equity Building Society, the court held that chargors who evaluated the property in monetary terms and offered it as security cannot complain that loss is incapable of compensation; sympathy cannot displace the law.

p. 3
03

Whether the court can compel the lender to reschedule repayment

Holding

No; rescheduling requires voluntary negotiation, and the court will not intervene absent contractual provision for negotiation or other dispute-resolution modes

Reasoning

The applicants asserted a statutory duty on the lender to allow rescheduling where a borrower shows commitment to pay, but cited no specific statutory provision or decided case law. The court held that in the absence of any contractual basis, the applicable law must simply be followed and applied.

p. 3

Legal principles established

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  • A mortgagee/chargee will not be restrained from exercising the power of sale merely because the amount due is in dispute or the mortgagor objects to the manner of sale; restraint lies only where the mortgagor pays the amount claimed into court or the claim is prima facie excessive
  • Property offered as security, including a matrimonial home, stands the risk of sale upon default and its loss is compensable in damages

Court orders

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  1. 1.The application dated 9.11.2016 is dismissed entirely
  2. 2.Costs of the application awarded to the defendant/respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A and 63(e)
  • Civil Procedure RulesOrder 40 Rules 1(a), 2, 3 and 9

Cases cited (7)

  • GIELA VS CASSMAN BROWN & Co Ltd
    (1973) EA 358
  • MILIMANI MOTORS (K) LTD Vs KENYA COMMERCIAL BANK LTD
    HCC NO. 171 OF 2012
  • JAMES KIPRUTO LANGAT & another Vs FAMILY BANK LIMITED & another
    ELC NO. 121 OF 2015
  • SAMMY JAPHETH KAVUKU Vs EQUITY BANK LIMTED & another
    HCC NO. 84 OF 2013
  • WYCLIFE MUTALI OKWARO Vs THE KENYA WOMEN MICRO FINANCE BANK LIMITED & another
    ELC NO. 98 OF 2017
  • MALTEX COMMERCIAL SUPPLIES LIMITED & another Vs EURO BANK LIMITED (N LIQUIDATION)
    HCC NO. 82 OF 2006
  • Andrew Muriuki Wanjohi Vs Equity Building Society & another
    (2006) eKLR
Jurisdiction invoked
Section 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act (Cap 21) and Order 40 Rules 1(a), 2, 3 and 9

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, "Shalom Agencies Limited & another v Family Bank Limited [2019] KEELC 4822 (KLR)", Case Analysis (2019). Notice of Motion dated 9.11.2016, filed 10.11.2016 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4822/eng@2019-01-30

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