Co-operative Bank of Kenya Limited v Njuguna & 5 others (Civil Appeal 83 of 2016) [2017] KECA 79 (KLR)

The court analysed Article 162(2)(b), Article 260 and the common law cujus doctrine to define 'land' and 'land use'. A charge is an interest in land securing payment of money; its creation creates a security relationship limited to repayment, not utilization of land. Section 13(2)(d) of the ELC Act must be read as covering contracts incidental to land use, excluding mortgages and charges. The dominant issue was settlement of sums owing under a banker-lender relationship, squarely within Article 165(3) unlimited original civil jurisdiction of the High Court.

Applying Giella v Cassman Brown, the judge was to look at the whole case including the strength of the defence. Although two statutory notices dated 3rd December 2014 were annexed, the certificates of posting lacked dates of posting. Section 90 notice is triggered by service. Where doubt on service persists, the matter calls for interrogation of evidence at trial and, in the interim, attracts injunctive orders. The trial judge could not be faulted for so holding.

The ITPA was repealed by the Land Registration Act 2013, but section 107(1) saves rights accrued under prior law, and this Court had previously held in Naftali Ruthi Kinyua that lis pendens subsists under common law. Section 52 ITPA prohibited dealings only during the 'active prosecution' of proceedings. The Indian position, triggered on institution, is backed by safeguards absent in Kenya; hence mere filing does not stay a chargee's statutory sale.

The court examined the ruling and found the judge never relied on failure to serve a consenting spouse under section 96(3)(c) of the Land Act; the bedrock of the orders was non-service of the statutory notices. On the interim orders of 21st July 2016, the appeal was confined to the final orders made on the consolidated applications, so that ground could not be entertained.