[2008] KEHC 2399 (KLR)
The court held that the Defendant had not served a valid statutory notice under Section 69A of the Transfer of Property Act prior to seeking to exercise its statutory power of sale over the charged property. The court clarified that the statutory three months notice and the 45 days redemption notice are separate and...
Source-derived case information.
- Citation
- [2008] KEHC 2399 (KLR)
- Parties
- Plaintiff: Diamond Trust Bank (K) Ltd.; Defendant: Francis Ichatha Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 634 of 2002
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Injunction
- Outcome
- Application for temporary injunction dismissed.
- Legal Topics
- Statutory Power of Sale, Injunctions, Statutory Notice Requirements, Redemption Notice, Mortgage Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diamond Trust Bank (K) Ltd.
Plaintiff
Francis Ichatha Kamau
Defendant
Procedural Posture
Civil Case / Ruling on Chamber Summons for Injunction
Legal Issues
- 1 Whether the Plaintiff is entitled to a temporary injunction restraining the Defendant from exercising its statutory power of sale over the charged property pending the hearing and determination of the suit.
- 2 Whether the Defendant complied with the statutory notice requirements under Section 69A of the Transfer of Property Act before seeking to sell the property.
Ratio Decidendi
The court held that the Defendant had not served a valid statutory notice under Section 69A of the Transfer of Property Act prior to seeking to exercise its statutory power of sale over the charged property. The court clarified that the statutory three months notice and the 45 days redemption notice are separate and both must be served in accordance with the law. Since the Defendant had not complied with the requirement to serve a fresh three months statutory notice, its statutory power of sale had not arisen. The court further found that granting the injunction sought would contradict its earlier ruling dismissing a similar application and would effectively grant a permanent injunction...
Court Disposition
Application for temporary injunction dismissed.
Orders
- The application for a temporary injunction is dismissed.
- The Defendant's statutory power of sale will arise only after compliance with the court's order by issuing a fresh three months statutory notice as required under Section 69A of the Transfer of Property Act.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 634 of 2002
DIAMOND TRUST BANK (K) LTD.…..…………… ………….PLAINTIFF
VERSUS
FRANCIS ICHATHA KAMAU…………………..…….….…RESPONDENT
R U L I N G
The application is a Chamber Summons dated 28th September, 2007 expressed to be brought under Order XXXIX Rule 1, 2and3of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. Prayer 1 and 2 of the Application is moot. In prayer 3 the Defendant/Applicant seeks orders as follows: -
“3. THAT, a temporary injunction do issue restraining the Plaintiff whether by itself, its agents, servants and/or employees from selling or offering for sale whether by Public Auction or Private Treaty, transferring, charging, leasing, pledging or in any other way alienating or disposing of the property registered as LIMURU/BIBIRIONI/T.52 pending the hearing and determination of this suit.”
The key ground cited in support of the application is that the Respondent had notified the Applicant of the intention to sell the suit property yet no Statutory Notice was served on the Defendant as ordered in the Courts ruling of 20th July 2007.
The application is opposed. The Defendant filed a replying affidavit sworn by its Manager, Debt Recovery Unit, Elizabeth Hinga. The deponent has attempted to interpret the meaning of the Court’s ruling by deposing that what the court required was not a re-issue of the three months Statutory Notice under Section 69A of Transfer of Property Act, but the 45 days Redemption Notice.
The ruling was made by myself after hearing an application for injunction by the Defendant herein which I dismissed. The disputed holding is No. 2 of the Courts ruling in which I held as follows:
“There is no bar to the Defendant to exercise its statutory power of sale over the charged property so long as it issues a valid statutory notice.”
In that ruling at page 4 of copy annexed to the supporting affidavit, I did find that the Defendant did not prove that a Statutory Notice, dated 23rd November, 1995 was served on the Defendant. I also found that no other Statutory Notice was served as required under Section 69A of the Transfer of Property Act, before the sale intended for 14th March 2007. I also made a specific finding that the Statutory Notice dated 12 years before could not have served any purpose in relation to the sale intended for March 2007. I therefore ruled, not only that no Statutory Notice was served on the Defendant, but that a valid Statutory Notice should be served on him as required under Section 69A of the Transfer of Property Act before the Defendant could exercise its Statutory Power of Sale.
That notice cannot be confused with a 45 days Redemption Notice. The two notices are different and serve different purposes in law. The chargees Statutory Power of Sale cannot accrue or arise until the statutory three months notice is served on the chargor or mortgagor.
The ruling is clear. The Defendant should serve the Statutory Notice as prescribed underSection 69A of the Transfer of Property Act. After that is done, the 45 days Redemption Notice must also be served.
Having made the above order, I conclude by stating that as I ruled on 20th July, 2007 the Plaintiff does not deserve any injunction as prayed for in prayer 3 of the application. The simple reason is that the proceedings in HCCC No. 128 of 2007 were stayed and the application for injunction dismissed by this Court’s ruling of 20th July, 2007. To grant the injunction will defeat the court ruling and order of 20th July, 2007 and will also be erroneous as it will grant the Plaintiff a permanent injunction.
Having come to the conclusion I have of this matter, I direct that the Respondent’s Statutory Power of Sale will arise only after it complies with this Court’s order by issuing a fresh three months Statutory Notice.
Those then are my orders.
Dated at Nairobi this 22nd day of February, 2008.
LESIIT, J.
JUDGE
Read, signed and delivered, in the presence of:
Mr. Issa, Advocate for the Defendant/Applicant
Mr. Mwangi holding brief Mr. Rimui, Advocate for Plaintiff/Respondent
LESIIT, J.
JUDGE