Esther Kemuma Mogaka v Diamond Trust Bank of Kenya Ltd & 2 others [2020] KEELC 1184 (KLR)
- Court
- Environment & Land Court
- Case number
- 1184
- Citation
- [2020] KEELC 1184 (KLR)
- Decided
- 25 September 2020
The Court finds that failure to comply with Rule 15 of the Auctioneers Rules alone does not render the sale null and void.
Facts
The Plaintiff, Esther Kemuma Mogaka, was a co-director of M/s Ouru Power Limited which was advanced Kshs. 115,000,000 by the 1st Defendant, Diamond Trust Bank of Kenya Ltd. The loan was secured by a charge over L.R No. KISII MUNICIPALITY/BLOCK 111/334. The Plaintiff filed a challenge to the sale of the property in Kisii ELC Case No. 284 of 2016.
Issues
- Whether the 2nd Defendant, Stephen Karanja Kangethe T/A Dalai Traders Auctioneers, issued a Notification of sale as required by Rule 15 of the Auctioneers Rules.
- Whether failure to comply with Rule 15 of the Auctioneers Rules invalidates the sale and entitles the Plaintiff to an injunction.
Reasoning
The Court concludes that the Plaintiff has not demonstrated a prima facie case with a probability of success, as the borrower is still indebted to the 1st Defendant and the statutory power of sale had accrued.
Outcome
The Plaintiff’s application for injunction is dismissed.
Authorities cited
Legislation (2)
- Auctioneers Rules 1997
- Auctioneers Act
Cases cited (6)
- Githere v Kimungu (1985) E.A 101
- Franklin Gambo Mwagambo v Equity Bank Limited (2015) eKLR
- Eric Odindo v National Bank of Kenya Limited & 2 Others (2008) eKLR
- Jacob Ochieng Muganda v Housing Finance Company of Kenya Limited HCCC No. 1436 of 1999 (U.R)
- Giella v Cassman Brown & Company Ltd (1973) E.A 358
- Mrao v First American Bank of Kenya Limited (2003) eKLR
Loading judgment…