The High Court in Nairobi has now allowed Credit Bank to proceed with the sale of a prime building project in Upperhill over a Sh1.2 billion loan that had been advanced to Jabavu Village Limited and Hasscon Pharmaceuticals Limited.
“Consequently, the applicant’s motions dated January 30, 2025, and February 7, 2025, must fail. The same are hereby dismissed with an order that the costs thereof be in the cause. The 1st respondent is at liberty to proceed and exercise its statutory power of sale,” Justice Peter Mulwa said in his February 24, 2025 decision.
The ruling came a month after the court had temporarily stopped the bank from auctioning the property until the giving of directions on February 17, 2025.
In a decision on January 27, 2025, the High Court had given Credit Bank the go-ahead to sell the land. Aggrieved by that decision, One UpperHill Towers Limited, which is the registered owner of the property, went to court and filed a certificate of urgency seeking to stop auctioning of the land.
Jabavu Village Limited and Hasscon Pharmaceuticals Limited were brought into the case as interested parties.
Upperhill Towers told the court that the bank did not serve them with statutory notices before moving to sell the property. It added that the property was being sold at a significantly lower price than its market value.
On its end, the Credit bank said it issued proper notices and sent them through registered mail, as required by law. The company said that the complainants had defaulted on its loan obligations, giving the bank the legal right to exercise its power of sale.
Justice Mulwa noted that the court had to determine whether Credit Bank had complied with legal notice requirements before listing the property for sale.
The judge determined that the bank had indeed served the necessary Section 90 and Section 96 notices under the Land Act. The court relied on proof of service via registered mail and dismissed One Upperhill Towers’ claim that they had not received the notices.
“In the premises, the burden of proof is on the applicant to prove the contrary and there being no indication to the contrary, for the purposes of the instant applications, service in respect of Sections 90 and 96 notices herein is deemed to have been properly made,” the judge said.
“In view of the foregoing, I am not satisfied that a prima facie case has been made out herein by the applicant to warrant the issuance of the injunctive order sought. In the premises, there would be no need to consider the question as to whether the plaintiff stands to suffer irreparable harm, or in whose favour the balance of convenience tilts.”
