Saying that a notice was not received raises a factual question. Producing evidence of registered posting can change what needs to be answered next. Elizabeth Wambui Njuguna’s 2006 application illustrates that movement of the evidential burden, without establishing that every letter said to have been posted must be treated as delivered.
Case identity
- Case: Elizabeth Wambui Njuguna v Housing Finance Co. of Kenya Limited
- Court: High Court at Nairobi, Milimani Commercial Courts
- Decision date: 4 July 2006
- Citation: [2006] KEHC 1869 (KLR)
- Primary source: Kenya Law ruling
- Stage: Application for an injunction against an intended auction; ruling by Mary Kasango J.
Two objections to an intended sale
The borrower obtained a loan to buy the charged property and agreed to repay by instalments. She admitted falling into arrears. With an auction scheduled for July 2006, she sought a court order stopping it. Her principal arguments concerned service of the statutory notice and alleged undervaluation. (Official HTML, unnumbered passages from "The relationship between the plaintiff" through "Considering the submissions".)
The borrower denied receiving the mandatory notice. The lender responded with a demand letter and a certificate of posting a registered postal article. The address used was not challenged as someone else's address. The borrower's advocate nevertheless objected to the certificate's treatment in the replying affidavit. (Passages beginning "On the first ground", "Plaintiff's counsel submitted" and "Defendants had this to say".)
The distinction between a copied letter and evidence of dispatch mattered. The judge did not simply infer service from the borrower's admitted default. She examined the posting certificate accompanying the registered letter and rejected the argument that it should be disregarded merely because it had not been separately described in the affidavit. (Passage beginning "I will begin by considering".)
A provisional finding, not a universal rule
The court held that the lender’s exhibits shifted the evidential burden back to the borrower. On the material before it, the court found service on a prima facie basis at the interlocutory stage. Those qualifications are part of the finding. They should not disappear when the ruling is summarised as a case about mortgage notices. (Unnumbered paragraphs beginning “I will begin by considering” and “The plaintiff ought to have brought”.)
The valuation objection also failed to justify temporary restraint. The borrower criticised a valuation that did not account for internal improvements. The judge’s assessment was that she appeared to have denied the lender’s valuers access, and could not rely on that situation to obtain an injunction. The court also considered that a monetary remedy could be quantified if the sale were ultimately found wrongful. It did not award damages in this application. (Unnumbered paragraph beginning “The plaintiff’s second ground”.)
A separate allegation of unexplained charges and interest was treated as abandoned: counsel had not pursued it in submissions and supporting documentation was lacking. That is different from a final adjudication validating every entry in the loan account. (Unnumbered paragraph beginning “It is pertinent to note”.)
The chamber summons dated 2 June 2006 was dismissed with costs to the lender. The judge found no prima facie case warranting the requested injunction. The order did not establish that an auction subsequently occurred, identify a purchaser or finally determine a later claim for damages. (Final passages beginning "The court finds" and "The order of the court is".)
Questions this evidence trail suggests
For a borrower, what exactly is disputed: the address, dispatch, receipt, contents or timing? Are relevant address-change communications available? An advocate can identify what evidence responds to the particular notice relied upon, rather than treating all notice disputes as identical.
For a lender, does the file connect the actual notice to the dispatch record? Is it possible to explain the address used and the chronology without relying solely on a template letter?
For both sides, a valuation inspection should have a documented history. An independent valuer can assess disputed assumptions; a screening result cannot establish the condition of interiors or resolve conflicting valuation evidence.
Scope and historical status
A later-history search on 11 September 2026 did not establish a subsequent appeal or final outcome in this dispute. That is a search limitation, not confirmation that nothing followed.
ArdhiScore helps organise parcel identifiers, dated evidence, citations, confidence and unresolved questions within its coverage limits. It does not certify service, guarantee discovery of private correspondence or replace an official search and qualified Kenyan legal advice. Explore ArdhiScore screening and its limits. This explanation concerns a historical ruling under the law then considered, not present rights or a current procedural checklist. It is educational, not legal advice.