[2019] KEHC 12414 (KLR)
The court found that there was insufficient evidence to prove that the statutory notice required under Section 96(1) of the Land Act was properly served on the Plaintiff. The process server's testimony was inconsistent regarding how the Plaintiff received the notice, and there was no unequivocal acknowledgment of...
Source-derived case information.
- Citation
- [2019] KEHC 12414 (KLR)
- Parties
- Plaintiff: Parkash Juttla; Defendant: CFC Stanbic Bank Limited; Defendant: Selbourne Apartments (Investment Limited)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 116 of 2018
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Injunction
- Outcome
- Notice of Motion dated 10th July, 2019 partially succeeds; auction stopped pending proper service of notice.
- Judges
- F Tuiyott
- Legal Topics
- Service of Statutory Notice, Injunctive Relief, Mortgage Enforcement, Occupier Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Parkash Juttla
Plaintiff
CFC Stanbic Bank Limited
Defendant
Selbourne Apartments (Investment Limited)
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Injunction
Legal Issues
- 1 Whether the statutory notice required under Section 96(1) of the Land Act was duly served on the Plaintiff.
- 2 Whether service of the notice on the Plaintiff's advocate was properly effected.
- 3 Whether failure to serve proper notice invalidates the intended auction of the property.
Ratio Decidendi
The court found that there was insufficient evidence to prove that the statutory notice required under Section 96(1) of the Land Act was properly served on the Plaintiff. The process server's testimony was inconsistent regarding how the Plaintiff received the notice, and there was no unequivocal acknowledgment of receipt by the Plaintiff's advocates. As Section 96(2) mandates service on an occupant, failure to effect proper service meant that the statutory requirements had not been met. Consequently, the court held that the auction scheduled for 6th August 2019 could not proceed until proper notice was served, but clarified that the Bank retained the right to proceed with the statutory...
Court Disposition
Notice of Motion dated 10th July, 2019 partially succeeds; auction stopped pending proper service of notice.
Orders
- Auction scheduled for 6th August, 2019 is stopped/injuncted.
- Bank is at liberty to proceed with statutory rights upon proper service of notice under Section 96(2) of the Land Act.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 116 OF 2018
PARKASH JUTTLA ...................................................................... PLAINTIFF
VERSUS
CFC STANBIC BANK LIMITED ………........................... 1ST DEFENDANT
SELBOURNE APARTMENTS
(INVESTMENT LIMITED) ……..………...………………2ND DEFENDANT
RULING
1. There is a contest as to whether or not the Notice required by Section 96(1) of the Land Act was duly served on the Plaintiff herein.
2. It was agreed by consent of Counsel that the process server who purportedly served the Notice be cross-examined. This happed on 1st August, 2019. Mr. Omondi George Pongo was confident until the point when he was confronted that the Plaintiff is sick and immobilized and could not have left her house to the gate to receive service. At this point he sought to explain that the Plaintiff walked to the gate under the support of the Guard. This was a change from his earlier testimony that:
“She came alone accompanied by the Guard”.
The process server who was remarkably descriptive and dramatic in his testimony had earlier described the Plaintiff. I would be surprised that he was unable in the first instance to remember that the Plaintiff needed support to move from her house to the gate.
3. As to service of the Notice upon H. Kago & Co. Advocate all this court has is the letter of 27th May, 2019 from Walker Kontos Houses to H. Kago & Co. Advocates and the response thereto of 3rd May, 2019. The letter does not unequivocally acknowledge receipt of the Notice itself. Given that what is before me is word of the Counsel against the other. I am unable to hold that indeed the letter of 27th May, 2019 also forwarded the Notice.
4. While I appreciate that the Plaintiff is only an occupant and not the chargor, Section 96(2) requires an occupant such as the Plaintiff to be duly served with Notice. If no proper Notice is served then there is no compliance with the Provisions of Section 96(2).
5. For that reason auction due for tomorrow (6th August, 2019) is hereby stopped/injuncted.
6. Nevertheless the Bank still be entitled to press on with its statutory rights upon proper service of Notice under the provisions of Section 96(2) of The Lands Act. As the firm of H. Kago & Co. Advocates confirm instructions to receive Notice on behalf of the Plaintiff, the Bank is at liberty to service the Notice on the said firm. But I leave this to the wisdom of the Bank.
7. Only to that extent that the Notice of Motion dated 10th July, 2019 succeeds. Costs in the cause.
Dated, Signed and Delivered in Court at Nairobi this 5th Day of August, 2019.
F. TUIYOTT
JUDGE
PRESENT;
Kago for Plaintiff
Ogunde for Defendant
Nixon – Court Assistant