Nellie Enignus Wamalwa v Rafiki Deposit Taking Micro Finance (K) Limited [2016] KEELC 698 (KLR)
- Court
- Environment & Land Court
- Case number
- 698
- Citation
- [2016] KEELC 698 (KLR)
- Decided
- 13 July 2016
The court finds that the process to realize the charged property and the advertisement for auction were premature due to the lack of proper service of the notice under Section 90 of the Land Act No.6 of 2012. The court stops the process and orders each party to bear their own costs.
Facts
The Applicant, Nellie Enignus Wamalwa, claimed she was never served with statutory notices before the sale of the suit property was advertised on 2nd September 2015. The Respondent, Rafiki Deposit Taking Micro Finance (K) Limited, argued that the borrower and chargor had defaulted in repayment of the loan.
Issues
- Whether the loan facility was in arrears
- Whether the requisite notices were issued and served
- Whether the Respondent's power of sale had arisen
- Whether the orders sought should be granted
- Who pays the costs
Reasoning
The court ruled that the Applicant was not properly served with the statutory notice under Section 90 of the Land Act No.6 of 2012, thus the power of sale had not arisen. The court also noted that the Applicant conceded the loan facility was in arrears.
Outcome
The court allowed the application and ordered the process to stop.
Orders
- The process to realize the charged property and the advertisement for auction are hereby stopped.
- Each party will bear their own costs.
Remedies
- The court's ruling stops the process to realize the charged property and the advertisement for auction.
- Each party is ordered to bear their own costs.
Authorities cited
Legislation (3)
- Land Act No.6 of 2012
- Section 90 of the Land Act No.6 of 2012
- Section 96 of the Land Act No.6 of 2012
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