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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 18 of 2006· [2015] KECA 710 (KLR)

Romanus Okeno v Bank of Baroda

Court of Appeal of Kenya
21 May 2015
1,901 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a bank cannot sell charged land without a valid statutory notice stating the sale will happen after three months.

What this practically means

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Executive summary

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The appellant, Romanus Okeno, had charged his Kisumu property as security for loans to Lake Quarry Limited from Bank of Baroda. After default, the Bank served a statutory notice and advertised the property for sale. Okeno sued in the High Court seeking an injunction, declarations that the statutory power of sale was null and void, and an order for discharge of the charges. The High Court (Tanui J., delivering judgment on evidence heard by Gacheche J.) dismissed his suit with costs, though it made findings both that the statutory notice gave sufficient time to redeem and, contradictorily, that the notice was invalid. On appeal, the Court of Appeal agreed with the appellant that the trial judge's conclusion on the statutory notice could not be reconciled with his own findings. Relying on its earlier decision in Trust Bank v Eros Chemits, the Court held that the object of a statutory notice under section 74(1) of the Registered Land Act mirrors that under section 69A(1) of the Transfer of Property Act: the notice must expressly state that the sale shall occur after the three months' period, and failure to serve a valid notice means the statutory right of sale is not exercisable. The Court rejected the complaint that Tanui J. could not deliver judgment on evidence heard by another judge, citing Order 18 rule 8(1). The complaint about the defective auctioneer's notification of sale was dismissed as academic since the auction had been stopped. The limitation plea was not argued and the High Court's findings on it were accepted. The appeal was allowed in part: the High Court judgment was set aside and substituted with a declaration that the statutory notice was invalid, the Bank remaining free to realise its security lawfully. The appellant received costs in both courts.

Key legal issues

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01

Consequences of failure to serve a valid statutory notice of sale under section 74(1) of the Registered Land Act

Holding

The object of a statutory notice is to protect the mortgagor's equity of redemption; the notice must state that the sale shall take place after three months, and an invalid notice means the statutory power of sale is not exercisable. The High Court's contradictory conclusions on the notice's validity could not stand.

Reasoning

The Court of Appeal applied its five-judge decision in Trust Bank v Eros Chemits, holding that the object of a statutory notice under the Registered Land Act is no different from that under the Transfer of Property Act, and that the learned Judge's distinction between the two sections could lead to absurd results. Having found the notice invalid, the Judge should have held the right of sale unexercisable, yet he dismissed the suit - a contradiction requiring appellate intervention.

p. 3
02

Whether judgment may properly be prepared and delivered by a judge other than the one who heard the evidence

Holding

Yes. Under Order 18 rule 8(1), a successor judge may deal with evidence taken by his predecessor as if taken before him, so Tanui J. had power to deliver judgment on evidence heard by Gacheche J.

Reasoning

The Court held the complaint was not serious and was buttressed by Order 18 rule 8(1), which expressly permits a judge prevented from concluding a trial's successor to deal with the evidence taken down and proceed from the stage the predecessor left. Tanui J. dealt with the evidence as if he had heard it, so no complaint arose.

p. 3

Legal principles established

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  • A statutory notice of sale under section 74(1) of the Registered Land Act, like one under section 69A(1) of the Transfer of Property Act, must expressly state that the sale shall take place after the three months' period; failure to serve a valid statutory notice means the right to sell the charged property is not exercisable
  • Under Order 18 rule 8(1), a judge who did not hear the evidence may deal with evidence taken by his predecessor and deliver judgment from the stage at which the predecessor left the trial

Court orders

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  1. 1.The judgment of Tanui J. dated 26th January, 2005 is set aside and substituted with judgment for the appellant declaring, as invalid, the statutory notice of sale served by the respondent
  2. 2.The respondent is at liberty to realize its security in accordance with the law
  3. 3.The appellant shall have the costs of this appeal and those of the High Court
On appeal from
High Court of Kenya at Kisumu
H.C.C.A. No. 255 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal against the judgment and decree of the High Court (no specific constitutional/statutory provision stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Romanus Okeno v Bank of Baroda", Case Analysis (2015). Civil Appeal No. 18 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/710/eng@2015-05-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.