[2016] KEELC 20 (KLR)
The court found that the value stated in the Defendant's Notification of Sale was within the acceptable market and forced sale values as confirmed by the joint valuation report. The Plaintiff, having defaulted on the loan and offered the property as security, could not restrain the Defendant from exercising its...
Source-derived case information.
- Citation
- [2016] KEELC 20 (KLR)
- Parties
- Plaintiff: Hellen Jane Achieng’ Odegi; Defendant: Kenya Commercial Bank
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 867 of 2015
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- Notice of Motion dismissed; interim orders vacated.
- Judges
- LN Gacheru
- Legal Topics
- Mortgage Power of Sale, Valuation of Security, Notification of Sale, Matrimonial Property as Security
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hellen Jane Achieng’ Odegi
Plaintiff
Kenya Commercial Bank
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Notification of Sale issued by the Defendant was within the acceptable market value of the suit property.
- 2 Whether the Plaintiff established a prima facie case with a probability of success to warrant interlocutory orders.
- 3 Whether the Plaintiff is entitled to injunctive relief restraining the Defendant from exercising its statutory power of sale.
Ratio Decidendi
The court found that the value stated in the Defendant's Notification of Sale was within the acceptable market and forced sale values as confirmed by the joint valuation report. The Plaintiff, having defaulted on the loan and offered the property as security, could not restrain the Defendant from exercising its statutory power of sale. The court held that proper service of the Notification of Sale was effected, and the Plaintiff failed to establish a prima facie case with a probability of success. The court further held that the Plaintiff could be adequately compensated by damages if she succeeded at trial, and therefore, interlocutory injunctive relief was not warranted. The Plaintiff's...
Court Disposition
Notice of Motion dismissed; interim orders vacated.
Orders
- The Plaintiff's Notice of Motion dated 10th September 2015 is dismissed.
- Status quo orders in force are vacated forthwith.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
MILIMANI LAW COURTS
ELC NO. 867 OF 2015
HELLEN JANE ACHIENG’ ODEGI.......................... PLAINTIFF/APPLICANT
=VERSUS=
KENYA COMMERCIAL BANK...........................DEFENDANT/RESPONDENT
FURTHER RULING
The Court on 23rd May 2016, directed the parties herein to undertake a joint valuation of the suit property. The Court had declined to confirm the interim orders that were entered on 15th September 2015, but issued status quo order until the joint valuation was to be done and report filed in Court.
The same was done on 26th July 2016, and a Valuation Report was filed in Court on 10th August 2016. The Court has now considered the said valuation report.
The market value was given at Kshs.16,000,000/= and forced sale value was given as Kshs.12,000,000/= . The court has also considered the Notification of Sale issued on 6th July 2015, and the open market value was given Ksh.15,000,000/=and forced value at Kshs.12,000,000/= . That was almost one year before the joint valuation was carried out.
The Court finds that the value given by the Defendant on 6th July 2015, was not an undervalued amount at that time and therefore the Defendant’s Notification was within the market value and forced value of the suit property.
The Court has also taken into account that the Plaintiff did take a loan from the Defendant and she is now in default. Taking into account the several cited authorities and the quotation from the Halsbury Law of England Volume 32 (4th Edition) at paragraph725 which provides that’
“ The mortgagee will not be restrained from exercising his power of sale because the amount due is in despite or because the mortgagor has begun a redemption action or because the mortgagor objects to the manner in which the sale is being arranged. He will be restrained however if the mortgagor pays the amount clamed into court that is the amount which the mortgagor claims to be due to him, unless on the terms of the mortgage the claim is excess”.
The Court has found and held that the amount stated in the Notification of Sale dated 6th July 2015, was within the acceptable value of the suit property.
The Court also found that the certificate of postage was sufficient proof that posting was affected on the last known address of the plaintiff and therefore there was proper service. The Court finds that the plaintiff has not established that she has a prima facie case with probability of success. Further the plaintiffs’ suit property has been valued and its value can be ascertained.
Though the Plaintiff stated the suit property is a matrimonial property, the moment it was offered as security for a loan facility, it became a commodity for sale in default of loan repayment. For that reason, the court finds that the plaintiff can be compensated by an award of damages in case she succeeds in the main trial.
On the balance of convenience, this Court finds that it is not in doubt and it will not decide on a balance of convenience.
For the above reasons, the court finds that the applicant’s Notice of Motion dated 10th September 2015, is not merited. The Court declines to confirm orders in force and consequently discharged and /or vacates them forthwith.
The said Notice of Motion is hereby dismissed and Status Quo orders in force are vacated.
It is so ordered
Dated, Signed, and delivered this 2ndday of December 2016.
L.GACHERU
JUDGE
2/12/2016
Before Hon.Gacheru J
Court Clerk : Vincent
Mr Odour holding brief for Mr Bwire for the Plaintiff/Applicant
Ms Michire for the Defendant/Respondent
L.GACHERU
JUDGE
Court:
Ruling read in open Court in the presence of the above stated advocates.
L GACHERU
JUDGE
2/12/2016