[2005] KEHC 3222 (KLR)

[2005] KEHC 3222 (KLR)

The court found that the Plaintiff had established a prima facie case with a probability of success at trial, particularly on the grounds that her signature on the charge was procured by undue influence and misrepresentation by her husband, and that the Defendant bank failed to take reasonable steps to ensure she understood the nature and effect of the transaction. The Plaintiff's averments regarding lack of independent legal advice, not appearing before the attesting advocate, and not understanding the charge were not controverted by the Defendant. The court held that the omission of the words 'Drawn by' on the charge did not invalidate it, as the advocate's name and address were present...

Citation
[2005] KEHC 3222 (KLR)
Parties
Plaintiff: Anjanaben Anil Shah; Defendant: Akiba Bank Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
28 November 2005
Case Number
Civil Case 374 of 2005
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction
Outcome
interlocutory injunction granted
Legal Topics
Statutory Power of Sale, Matrimonial Property Charges, Undue Influence, Statutory Notice Requirements, Advocates Act Compliance, Interlocutory Injunctions
Source Language
English
Land and Property Banking and Finance Civil Procedure Statutory Power of Sale Matrimonial Property Charges Undue Influence Statutory Notice Requirements Advocates Act Compliance +1 more

Case Brief

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Parties

Anjanaben Anil Shah

Plaintiff

Akiba Bank Limited

Defendant

Procedural Posture

Civil Case / Ruling on Interlocutory Injunction

Legal Issues

  1. 1 Whether the Plaintiff was properly served with a valid statutory notice of sale by the Defendant.
  2. 2 Whether the charge instrument offends Sections 34 and 35 of the Advocates Act and is thus invalid.
  3. 3 Whether the Plaintiff's signature on the charge was procured by undue influence and/or misrepresentation by her husband and whether the Defendant is fixed with constructive notice of such influence.

Ratio Decidendi

The court found that the Plaintiff had established a prima facie case with a probability of success at trial, particularly on the grounds that her signature on the charge was procured by undue influence and misrepresentation by her husband, and that the Defendant bank failed to take reasonable steps to ensure she understood the nature and effect of the transaction. The Plaintiff's averments regarding lack of independent legal advice, not appearing before the attesting advocate, and not understanding the charge were not controverted by the Defendant. The court held that the omission of the words 'Drawn by' on the charge did not invalidate it, as the advocate's name and address were present...

Court Disposition

interlocutory injunction granted

Orders

  • The Defendant is restrained from offering for sale, advertising for sale, selling, disposing, transferring, or in any other manner alienating L.R. No.7741/226 pending the hearing and determination of the suit.
  • The Plaintiff shall file a written undertaking as to damages on oath within 7 days.