[2010] KEHC 2770 (KLR)

[2010] KEHC 2770 (KLR)

The court found that the 1st defendant had properly issued and served the three months statutory notice to the plaintiffs using the address in the charge documents, as required by section 74 of the Registered Land Act. The 2nd defendant also issued a valid 45 days redemption notice and notification of sale in compliance with Rule 15 of the Auctioneers Rules, 1997. The court held that the charge documents contained the necessary acknowledgment by the 2nd and 3rd plaintiffs that they understood the effect of section 74, as required by section 65 of the Act, and were properly executed and witnessed by an advocate. The plaintiffs failed to demonstrate that they had fully paid the loan or that...

Citation
[2010] KEHC 2770 (KLR)
Parties
Plaintiff: Kora Construction Company; Plaintiff: Jackson Mutimba Lutta; Plaintiff: Eunice Vihenda Dangana; Defendant: The Co-operative Bank of Kenya; Defendant: Duncan Kinyanjui Wanju t/a Dolphin Auctioneers
Court
High Court
Court Station
High Court at Kakamega
Jurisdiction
Kenya
Judgment Date
15 April 2010
Case Number
Civil Case 69 of 2008
Procedural Posture
Civil Case / Ruling on Interlocutory Application for Injunction
Outcome
application dismissed with costs to the respondents
Legal Topics
Statutory Power of Sale, Registered Land Act Compliance, Injunctive Relief, Loan Default, Auctioneers Rules, Validity of Charge Documents
Source Language
English
Land and Property Banking and Finance Civil Procedure Statutory Power of Sale Registered Land Act Compliance Injunctive Relief Loan Default Auctioneers Rules +1 more

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Parties

Kora Construction Company

Plaintiff

Jackson Mutimba Lutta

Plaintiff

Eunice Vihenda Dangana

Plaintiff

The Co-operative Bank of Kenya

Defendant

Duncan Kinyanjui Wanju t/a Dolphin Auctioneers

Defendant

Procedural Posture

Civil Case / Ruling on Interlocutory Application for Injunction

Legal Issues

  1. 1 Whether a valid statutory notice was issued and served upon the plaintiffs.
  2. 2 Whether a valid 45 days redemption notice was issued in compliance with the Auctioneers Rules.
  3. 3 Whether section 65, 74 and 79 of the Registered Land Act were complied with in the charge documents.

Ratio Decidendi

The court found that the 1st defendant had properly issued and served the three months statutory notice to the plaintiffs using the address in the charge documents, as required by section 74 of the Registered Land Act. The 2nd defendant also issued a valid 45 days redemption notice and notification of sale in compliance with Rule 15 of the Auctioneers Rules, 1997. The court held that the charge documents contained the necessary acknowledgment by the 2nd and 3rd plaintiffs that they understood the effect of section 74, as required by section 65 of the Act, and were properly executed and witnessed by an advocate. The plaintiffs failed to demonstrate that they had fully paid the loan or that...

Court Disposition

application dismissed with costs to the respondents

Orders

  • The application for injunction is dismissed.
  • Costs awarded to the respondents.