[2005] KEHC 3368 (KLR)
The court held that, in the absence of a specified repayment date in the charge, section 65(2) of the Registered Land Act requires a written demand to be served on the chargor before the money becomes repayable. In this case, no such demand was served on the plaintiff; the demand was addressed to the principal...
Source-derived case information.
- Citation
- [2005] KEHC 3368 (KLR)
- Parties
- Plaintiff: Kipsang Sawe Sisei; Defendant: Kenya Commercial Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1613 of 2001
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application allowed with costs to the applicant
- Judges
- PJ Ransley
- Legal Topics
- Injunctive Relief, Statutory Notice Requirements, Registered Land Act Compliance, Mortgage and Charge Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipsang Sawe Sisei
Plaintiff
Kenya Commercial Bank Limited
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the defendant served a valid demand in writing as required by section 65(2) of the Registered Land Act before seeking to sell the suit premises.
- 2 Whether statutory notice under section 74(1) of the Registered Land Act was properly served on the plaintiff.
- 3 Whether the plaintiff is entitled to an injunction restraining the sale of the suit premises.
Ratio Decidendi
The court held that, in the absence of a specified repayment date in the charge, section 65(2) of the Registered Land Act requires a written demand to be served on the chargor before the money becomes repayable. In this case, no such demand was served on the plaintiff; the demand was addressed to the principal debtor, not the chargor. Consequently, the principal sum had not become due, and the statutory notice, though properly served, was premature. The court found that the defendant could not proceed with the sale of the suit premises until a proper demand was made and the statutory period elapsed. Therefore, the plaintiff was entitled to an injunction restraining the sale until...
Court Disposition
application allowed with costs to the applicant
Orders
- An injunction is granted restraining the defendant from selling the suit premises until proper demand and statutory notice are served in accordance with the Registered Land Act.
- The defendant shall pay the costs of this application to the applicant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS
Civil Case 1613 of 2001
KIPSANG SAWE SISEI ………………………………….……………..PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LIMITED ………………..………..DEFENDANT
RULING
The Applicant applies by way of Chamber Summons of the 19. 10. 2001 for an injunction in terms of prayer 3 of his application restraining the Respondent from selling the suit premises.
The application is based on two grounds namely that the charge, not specifying a date for repayment of the money, the money shall be deemed to be repayable after the service of a demand in writing to the chargor (section 65(2) of the Registered Land Act (the Act).
And further that no notice was served pursuant to the provisions of 74(1) of the Act which states as follows:-
“If default is made in payment of the principal sum or of any interest or any other periodical payment or of any part thereof, or in the performance or observance of any agreement expressed or implied in any charge, and continues for one month, the chargee may serve on the chargor notice in writing to pay the money wing or to perform and observe the agreement, as the case may be.”
The application is supported by the affidavit of the Applicant in which on paragraph 5 he depones that he has not been served with any statutory notice. Mr. Odipo relied on the case of Kanorero River Farm Ltd and 3 others v National Bank of Kenya Ltd HCCC. No.699 of 2001.
In response Miss Gitonga for the Respondent submitted that the Plaint did not allege that a demand was not served pursuant to Section 65(2) of the Act and that the Applicant cannot now rely on this ground as the Plaintiff is bound by his pleadings. She relied on Galaxy Paints Company Limited v Falcon Guards CA No.219 of 1998.
Miss Gitonga relied on the replying affidavit of David K. Chirchir in which he annexed a copy of a letter of demand dated 11. 9.2000 demanding the entire balance due within 14 days. The demand, however, was addressed to Penguin Engineering Limited, the principal debtor and not the chargor.
He also annexed a statutory notice addressed to the Applicant at his address and which was served by registered post.
Miss Gitonga referred to Clause 6(K) of the charge which states that a notice shall be sufficiently served if sent by post in a stamped addressed envelope to the chargor’s last known postal address and that proof of posting shall be proof of service.
In his reply Mr. Odipo relied on the grounds set out in the chamber summons that the provisions of the Act with regard to notice have not been complied with.
It is always in order for a litigant to raise a point of law and it is not necessary for this to be contained in the pleadings. In any event the matter has been raised in the Chamber Summons which in itself is a pleading. The applicant is, therefore, within his rights to raise the question of no date having been specified for repayment in the charge and that the provisions of Section 65(2) apply.
I would refer to the passage quoted above in the Kanorerocase where Ringera J rightly pointed out the effect of the provisions of Section 62(2).
In this case no such demand as is required by Section 65 (2) has been given and as such I hold that until the demand is made no money shall be deemed repayable.
With regard to the statutory notice I accept that the same was properly served in accordance with the notice clause in the charge. However, the notice cannot be given until the principal sum has become due which in this case is three months after a demand has been made under Section 65(2).
In the result I allow this application with costs.
Dated and delivered at Nairobi this 23rd Day of November, 2005.
P. J. RANSLEY
JUDGE