[2022] KEHC 1288 (KLR)
The court found that the plaintiff had demonstrated, through affidavit evidence and supporting correspondence, that the defendant had denied access to the charged property for the purpose of valuation, as required by Section 97(2) of the Land Act. The court held that the statutory duty to conduct a forced sale...
Source-derived case information.
- Citation
- [2022] KEHC 1288 (KLR)
- Parties
- Plaintiff: Bank of Africa Kenya Limited; Respondent: Pecker Woods Limited
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 11 of 2021
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Plaintiff's claim allowed; orders granted as prayed.
- Judges
- MM Kasango
- Legal Topics
- Chargee Power of Sale, Forced Sale Valuation, Loan Default, Access for Valuation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Bank of Africa Kenya Limited
Plaintiff
Pecker Woods Limited
Respondent
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to an order directing the defendant to grant access for valuation of the charged property.
- 2 Whether the defendant denied the plaintiff access to the property contrary to statutory requirements.
- 3 Whether the plaintiff complied with statutory requirements under the Land Act before exercising the power of sale.
Ratio Decidendi
The court found that the plaintiff had demonstrated, through affidavit evidence and supporting correspondence, that the defendant had denied access to the charged property for the purpose of valuation, as required by Section 97(2) of the Land Act. The court held that the statutory duty to conduct a forced sale valuation prior to exercising the power of sale is mandatory. The defendant's arguments regarding loan disbursement and account reconciliation did not negate the plaintiff's right to access for valuation. Consequently, the court granted the plaintiff's prayer for access to the property, with police assistance to ensure peace, and awarded costs to the plaintiff.
Court Disposition
Plaintiff's claim allowed; orders granted as prayed.
Orders
- Bank of Africa Kenya Limited and/or its representative is granted access to the property KIAMBU/MUN.BLOCK 111/167, on prior notice to Pecker Woods Limited, for the purpose of carrying out valuation of the said property.
- The local police station shall avail police officers to ensure there will be no breach of peace during the valuation.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CIVIL SUIT NO. 11 OF 2021
BETWEEN
BANK OF AFRICA KENYA LIMITED....PLAINTIFF
VERSUS
PECKER WOODS LIMITED..............RESPONDENT
JUDGMENT
1. This is an action initiated by Originating Summons. The prayer in the originating summons is as follows:-
“whether this honourable Court should be pleased to issue an order directing the defendant to grant access to the plaintiff’s authorised valuer for purposes of conducting a valuation of the parcel of land known and registered as KIAMBU/MUNBLOCK111/167 (hereinafter referred to as the security in order to ascertain the market and forced sale values.”
2. It is not denied that BANK OF AFRICA KENYA LIMITED the plaintiff) advanced to PECKERWOOD LIMITED (the defendant) a loan facility which was the defendant’s property known as KIAMBU/MUNBLOCK 111/167. The defendant does not deny that it failed to repay the loan facility. Rather, Simon Wagacha Kanai, the defendant’s director, deponed in his replying affidavit that the plaintiff failed to disburse to the defendant the entire loan which act “occasioned underserved/exaggerated/unreasonable” arrears by overloading the loan account. It was further deponed by the defendant’s director that the plaintiff failed to reconcile the defendant’s accounts. The said director also deponed that the defendant had not denied the plaintiff access to the charged property.
3. This action is brought under the provisions of Section 96 and 97 of the Land Act. Section 96 relates to the chargee’s power of sale while Section 97 relates to the duty of chargee exercising that power of sale. Section 97(2)provides:-
“A charge shall before exercising the right of sale, ensure that a forced sale valuation is undertaken by a valuer.”
4. The plaintiff has alleged in its affidavit, and has annexed correspondence showing the same that the defendant despite repeated requests, has denied the plaintiff access on the charged property in order to carry out a valuation as required in the above Section 97(2).
5. It is because of that allegation which is supported by correspondence that this Court finds there is merit in the prayer of the plaintiff.
6. In the end, the plaintiff succeeds in this action and this Court hereby grants the following orders.-
a. Bank of Africa Kenya Limited and, or its representative is granted access to the property KIAMBU/MUN.BLOCK 111/167, on prior notice to PECKERWOOD LIMITED, for the purpose of carrying out valuation of the said property.
b. The local police station to that property shall avail police officers to ensure that there will be no breach peace while such valuation is being undertaken.
c. The plaintiff is awarded costs of this suit.
JUDGMENT DATED and DELIVERED at KIAMBU this 24th day of MARCH, 2022
MARY KASANGO
Court Assistant : Mourice
For Plaintiff : Mr. Maondo
For Defendant : No appearance
COURT
Judgment delivered virtually.
MARY KASANGO
JUDGE