Peter Mathenge Gitonga v Kenya Commercial Bank Limited [2017] KEHC 9829 (KLR)
- Court
- High Court of Kenya
- Case number
- 9829
- Citation
- [2017] KEHC 9829 (KLR)
- Decided
- 31 January 2017
The Court found that the statutory notice was valid and that the plaintiff's defaults were not waived by the bank. The intended sale of the property was not premature and the notice was not defective.
Facts
The plaintiff, Peter Mathenge Gitonga, had a mortgage facility with Kenya Commercial Bank Limited. The plaintiff defaulted on payments, and the bank issued a statutory notice for sale. The plaintiff contested the sale, alleging the bank did not follow proper procedures.
Issues
- Whether the Defendant exercised its statutory power of sale legally, contractually and without malice, deceit or fraud.
- Whether the defendant charged interest at a rate higher than allowed by the law.
- Whether there was an overcharge of the plaintiff's account by Kshs 1,529,919.30 as at 29th February, 2008 and whether he is entitled to the same.
- Is the Plaintiff entitled to general damages?
- Who should bear the costs of this suit?
Reasoning
The Court held that the bank's statutory notice was valid and that the plaintiff's defaults were not waived. The Court also ruled that the plaintiff was not entitled to general damages and that the costs of the suit would be determined later.
Outcome
Affirmed the judgment of the High Court
Orders
- The power of sale cannot be exercised unless and until a notice requiring payment has been served and default is made in payment for three months after such service.
- The intended sale of the suit property marked for 15th February, 2008 was premature null and void.
Authorities cited
Legislation (1)
- Registered Land Act
Cases cited (4)
- Samson Kiama Macharia vs. Co-operative Bank of Kenya Limited
- Trust Bank Ltd vs. Okoth
- Trust Bank Ltd vs. Eros Chemists Ltd & Anor.
- Sharok Kher Mohaed Ali & Anor. vs. Southern Credit Banking Corporation Limited
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