[2007] KEHC 2587 (KLR)
The court found that the defendant failed to issue and serve the mandatory statutory notice required before exercising the power of sale over the charged property. The law mandates that such notice must be given in writing to the chargor, and in its absence, the chargee's right to sell does not arise. The...
Source-derived case information.
- Citation
- [2007] KEHC 2587 (KLR)
- Parties
- Plaintiff: Nyakongo Enterprises Limited; Plaintiff: Margaret Matendechere Kwasa; Plaintiff: Clement Onyango Kwasa; Defendant: Agricultural Finance Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 209 of 2007
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Interlocutory injunction granted in favour of the plaintiffs pending interpartes hearing of the main suit.
- Judges
- MA Warsame
- Legal Topics
- Statutory Notice Requirements, Injunctive Relief, Chargee Rights, Mortgage Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyakongo Enterprises Limited
Plaintiff
Margaret Matendechere Kwasa
Plaintiff
Clement Onyango Kwasa
Plaintiff
Agricultural Finance Corporation
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the defendant issued and served the mandatory statutory notice before seeking to auction the suit property.
- 2 Whether the absence of statutory notice invalidates the defendant's right to exercise the power of sale under the charge.
Ratio Decidendi
The court found that the defendant failed to issue and serve the mandatory statutory notice required before exercising the power of sale over the charged property. The law mandates that such notice must be given in writing to the chargor, and in its absence, the chargee's right to sell does not arise. The defendant's omission to comply with this statutory requirement invalidates any attempt to auction the property. The court held that allowing the defendant to proceed in contravention of the law would amount to permitting a party to benefit from its own wrongdoing, which is impermissible. Consequently, the court granted the injunction sought by the plaintiffs, restraining the defendant...
Court Disposition
Interlocutory injunction granted in favour of the plaintiffs pending interpartes hearing of the main suit.
Orders
- An order of injunction is issued restraining the defendant, its employees, agents, servants and officers from auctioning Nairobi Block 60/182 or in any way interfering with the said parcel of land pending the hearing and determination of the suit.
- Parties are directed to resolve all pre-trials within 30 days and list the suit for hearing on a priority basis.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
AT THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 209 OF 2007
NYAKONGO ENTERPRISES LIMITED ……...…..…...……1ST PLAINTIFF
MARGARET MATENDECHERE KWASA …......…….…….2ND PLAINTIFF
CLEMENT ONYANGO KWASA ……………….….………3RD PLAINTIFF
VERSUS
AGRICULTURAL FINANCE CORPORATION ….......……….DEFENDANT
RULING
The application for my decision is the one dated 19th April 2007 and seeks;
“that an order of injunction be issued restraining the defendant, its employees, agents, servants and officers from auctioning Nairobi Block 60/182 or in any way interfering with the said parcel of land herein above described, pending the hearing and determination of this suit”.
The thrust of the application is that the defendant never issued and served with the plaintiffs the mandatory statutory notice, hence it is the contention of the 1st plaintiff that it never received any demand and statutory notice from the defendants or its intention to sell the suit property.
It is clear in the application that the subject was granted to Shadrack O. Kwasa, who is now deceased sometimes in 1990, whereby the 1st plaintiff acted as a guarantor for that transaction and gave the suit property as a security for the said loan.
The defendant filed a lengthy replying affidavit but made no mention of whether it issued and served a statutory notice on the plaintiffs herein. The law is very clear that the property of a chargor cannot be sold without giving the requisite notice in writing. The notice is mandatory and in the absence of such a notice the right of the chargee to exercise its powers under the charge cannot arise. I am therefore satisfied that the notice and service of a statutory notice is a mandatory legal requirement and unless that step is fulfilled the defendant cannot be allowed to deal with the suit property. A party in contravention of the express provisions of the law cannot be allowed to pay damages in lieu of that legal requirement. I think that is the basis and foundation upon which the right of the chargee’s remedy to sell the property emanates. That was not done by the defendant and this court cannot allow a party in a clear contravention of the law to reap benefits from its own wrong doing. I refuse to do so.
In conclusion I grant prayer No.4 of the application dated 19th April 2007 till interparties hearing of the main suit. I direct the parties to resolve all pre-trials within the next 30 days and list the suit for hearing on a priority basis from the registry. Costs shall be in the cause.
Dated and delivered at Nairobi this 14th November 2007.
M. A. WARSAME
JUDGE