Rose Wangari Ndegwa v Housing Finance Company of Kenya Ltd & 3 others
The bottom line
#The Environment and Land Court in Mombasa dismissed a borrower's challenge to a bank's mortgage sale, ordering her to vacate the Mombasa property within 90 days.
What this practically means
#Executive summary
#Key legal issues
#Validity of the 1993 Charge
Charge valid and enforceable
The Charge was drawn by Bowyer Mahihu & Co., successor to Bryson, Inamdar & Bowyer, with name and address endorsed; omission of 'Drawn by' is not fatal per Anjanaben Anil Shah. The Plaintiff admitted signing before Sally Mahihu and enjoying the full loan benefit. She failed to prove the Section 69(1) certificate false, never calling the still-practising advocate; burden under Sections 107-109 Evidence Act lay on her.
Lawfulness of interest rates
Interest rates lawful and contractual
The 19% cap in Gazette Notice 1617 of 1990 was revoked in July 1991, two years before the facility; per Stanbic Bank v Santowels no cap applied. Clause 4 of the Charge permitted variation on notice, and variation letters were issued. The IRAC recalculation applying 19% was of no probative value, being partisan and based on a non-existent cap.
Default under the mortgage
Plaintiff in substantial default
The Plaintiff's own letters from 1994 to 2000 admitted arrears and sought indulgence; account statements showed arrears escalating to Kshs. 5,784,903.45 by the March 2006 statutory notice. Her claim of pre-payment was inconsistent with these admissions, which the court held bound her by estoppel.
Statutory notices and accrual of power of sale
Valid notices served; power of sale accrued
Statutory notices of 23rd May 1997, 7th August 1997 (90 days, satisfying the three-month requirement) and 24th March 2006 were issued and acknowledged in writing by the Plaintiff. Following Trust Bank v Kotedia and Trust Bank v Eros Chemists, the power of sale had accrued and was exercisable.
Lawfulness of private treaty sale and undervalue
Sale lawful and not at gross undervalue
Section 69(1) Transfer of Property Act permitted sale by private contract; per Francis Mogaka Maranya the earlier auction instructions did not bar private treaty. The sale price of Kshs. 8,500,000 exceeded Tysons' forced sale value of Kshs. 8,000,000 and fell within a reasonable range of open market value, satisfying the mortgagee's duty per KCB v Osede.
Lis pendens
Doctrine not breached
Per Co-operative Bank v Kangethe Njuguna and Bank of Africa v TSS Investment, pendency of a suit does not fetter statutory power of sale absent an express restraining order. The Plaintiff's earlier injunction application in HCCC No. 83 of 2002 was dismissed by Sergon J on 12th February 2007, and no injunction issued in this suit before the 30th April 2007 sale.
Legal principles established
#- Gazette Notice No. 1617 of 1990 capping interest at 19% was revoked by Gazette Notice No. 3348 of 23rd July 1991; facilities advanced thereafter were not subject to any statutory interest cap
- A charge bearing the name and address of the drawing firm but omitting the words 'Drawn by' is validly endorsed and does not offend Sections 34 and 35 of the Advocates Act
- The burden lies on a chargor alleging that the Section 69(1) explanation certificate is false to prove it, including by calling the certifying advocate
- Lis pendens does not operate as an automatic injunction; a chargee may exercise statutory power of sale pending suit unless a court order restrains the sale
- A mortgagee may sell by private treaty notwithstanding an earlier election to sell by public auction; there is no estoppel against the statute
- A mortgagee owes a duty to take reasonable precautions to obtain the true market value but is not a trustee of the power of sale for the mortgagor
Court orders
#- 1.The Plaintiff's claim through the Amended Plaint dated 4th July, 2007 found to lack merit and dismissed
- 2.The 2nd and 3rd Defendants granted vacant possession of Title Number C.R. 18132, Plot No. L.R. No. 3160/1/MN, Mombasa
- 3.Plaintiff ordered to vacate and deliver vacant possession within NINETY (90) DAYS from the date of Judgment (Section 152E, Land Act)
- 4.In default of vacating within 90 days, the 2nd and 3rd Defendants at liberty to lawfully evict the Plaintiff
- 5.Costs of the suit borne by the Plaintiff, payable to the 1st, 2nd and 3rd Defendants jointly and severally
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over title, charge and sale of land (Article 162(2)(b) Constitution; ELC Act) - suit transferred from the High Court (HCCC No. 8 of 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Wangari Ndegwa v Housing Finance Company of Kenya Ltd & 3 others", Case Analysis (2026). ELC. Case No. 147 of 2018 (Formerly High Court Civil Case No. 8 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5943/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.