How Kenyan in the US lost posh Kileleshwa dream home
A diasporan’s dream of owning prime property in Nairobi turned into a nightmare after a Nairobi court dismissed an application filed by Willy Kipyego Arap Butia, a Kenyan living in the United States.
Garam Investments Auctioneers announced on Monday, through an advertisement in the dailies, a public auction on May 2, 2023, of the prime residential apartment in the prestigious Kentmere Valley, Kileleshwa, Nairobi County.
The auction house has received instructions from the chargee’s advocates to publicly sell the property, including the apartment and accompanying buildings and improvements.
“Under instructions received from the chargee’s advocates, we shall sell by public auction the under-mentioned properties together with buildings and improvements erected therein,” part of the advertisement read in part.
The property, located within the upscale Kentmere Valley Apartments on Githunguri Close, Kileleshwa, features a four-bedroom unit (all ensuite) with a plinth area of 2,100 sq. ft. and a servant’s quarter with a plinth area of 150 sq.
Registered under the name of Willy Kipyego Arap Butia, the apartment is part of a 1.567-hectare (3.871-acre) parcel comprising three other blocks of four-bedroom units. Each apartment comes with two parking lots and a servant’s quarter.
Butia had in 2017 sought a temporary injunction to prevent the repossession, attachment, and sale of his two Kileleshwa residential properties, Units G2 and F12 on L.R. No. 209/11872, by the defendant bank due to the plaintiff’s failure to service his mortgage.
Butia approached the bank in 2015 for a mortgage facility to purchase the properties and entered into a mortgage, charge, sale, and management agreement.
However, in 2016, Butia realized the bank’s claim was excessive, as it charged interest on interest. The charge had been amalgamated for both properties, making it difficult for him to meet his obligations.
On December 4, 2017, Butia discovered that the defendant bank had advertised the mortgaged properties for public sale on December 20, 2017, without any notice being served to him. He sought a temporary injunctive order for amicable settlement discussions with the bank.
In response, the defendant bank submitted that the sale was pursuant to a statutory power of sale arising from Butia’s default in repayment of the two mortgage facilities. The bank demonstrated that Butia had defaulted on his repayments and owed USD 45,391.80 as of May 4, 2017.
The court agreed with the defendant’s position, stating that disputes regarding the amount owed do not form a basis for stopping a bank from exercising its statutory power of sale. The court also found that Butia had been served notice of the impending sale through his agent and via his mobile phone messaging application and email.
Based on the principles laid down in the case of Giella v. Cassman Brown and Company Ltd.  EA 358, the court ruled that Butia had failed to establish a prima facie case with a probability of success and that damages would suffice as an adequate remedy.
The court dismissed Butia’s application and granted the defendant bank permission to proceed with the sale of the properties as long as it adheres to the statutory mandatory procedures. The main suit may still proceed for hearing and determination on a date to be determined at the registry.