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Court of AppealDismissedCivil Appeal No. 30 of 2015

Benard Kiptarus v National Bank of Kenya Ltd & 4 others

Court of Appeal of Kenya
17 February 2016
David Kenani MaragaD.K. MaragaSKS. Gatembu KairuAMA.K. Murgor
1,159 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a landowner's appeal because he failed to give the court the key documents proving his claim that the bank's charge over his land was forged.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Maraga, Gatembu Kairu and Murgor, JJ.A) dismissed the appellant's appeal against an interlocutory ruling of Obaga, J. of the High Court at Kitale dated 22 July 2014, which had dismissed the appellant's two applications for temporary injunction and inhibition of registration of dealings over Title No. Nandi/Keben/135. The appellant claimed he had executed only a guarantee for a Kes. 600,000/= loan to Elly Tarus Chumo, never a charge over his land; that the charge registered in 2013 was a forgery effected without land control board consent; and that the land was sold at auction to the second respondent in purported exercise of a statutory power of sale. Counsel argued three grounds invalidating the charge: forgery, absence of land control board consent, and expiry under Sections 4 and 7 of the Limitation of Actions Act. The respondents maintained the charge was valid, the sale regular, and the second respondent a bona fide purchaser for value. The Court held that the critical documentary evidence - the charge document itself and proof that consent to charge was not obtained - was never placed before the trial Judge, who had only the auction advertisement, certificate of sale and the second respondent's title deed. The Judge was therefore bound to find no prima facie case. The Court declined to make definitive findings that could prejudice the pending ELC trial and dismissed the appeal with costs to the respondents.

Key legal issues

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01

Whether the appellant made out a prima facie case warranting temporary injunction and inhibition

Holding

He did not; the documentary evidence necessary to support the challenge to the charge was never placed before the trial Judge.

Reasoning

The charge document and documentary proof that consent to charge was not obtained were absent from the record before the High Court, as was any document proving forgery. Only the newspaper advertisement, certificate of sale and title deed of the second respondent were before the Judge. On that evidentiary state, the Judge correctly found no prima facie case. The appellate court, confined to the material before the trial court and mindful of the pending trial, declined to make definitive findings.

p. 3

Legal principles established

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  • On an interlocutory application for injunction, the absence of documentary proof of the foundational claim (such as the charge document or evidence that requisite consent was not obtained) means the applicant has not established a prima facie case
  • An appellate court hearing an appeal from an interlocutory ruling in a suit still pending trial is constrained from making definitive findings that may prejudice the hearing of the main suit

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the respondents
On appeal from
High Court of Kenya at Kitale (Environment and Land Court)
H.C. ELC No. 21 of 2014
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal's statutory appellate powers (appeal from an interlocutory ruling of the High Court as a matter of right)

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, "Benard Kiptarus v National Bank of Kenya Ltd & 4 others", Case Analysis (2016). Civil Appeal No. 30 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/780/eng@2016-02-17

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