Javaid Iqbal Khan & another v Iqbal Transporters Limited & another
The bottom line
#Kenya's Court of Appeal confirmed that borrowers must pay the full secured amount plus interest before a bank must release a charged property.
What this practically means
#Executive summary
#Key legal issues
#Whether dismissal of the redemption application amounted to striking out pleadings
No; the motion was not a pleading and the suit remained intact
Order 2 rule 15 governs striking out of pleadings as defined in section 2 of the Civil Procedure Rules. What was before the judge was an application for redemption orders, not a pleading. The ruling only dismissed the motion and did not affect the plaint seeking injunction and declarations; invoking order 2 rule 15 was misconceived.
Entitlement to accounts under order 20 rule 1
Refused; no prayer in the plaint and no preliminary question demonstrated
Order 20 rule 1 requires that accounts be prayed for in the plaint or that a preliminary question be shown. Accounts were sought only in the motion, and the supporting affidavit contained no averments demonstrating a preliminary question on the accounts justifying the order.
Redemption under section 85 of the Land Act upon payment of Kshs. 12 million only
Right of redemption exists but is conditioned on payment of all moneys secured, including interest
Section 85 entitles the chargor to discharge upon payment of all moneys secured. Clause 2.2(ii) and clause 3.1 of the charge, being operative provisions, made interest payable on the secured Kshs. 12 million; Recital B merely stated the maximum accommodation exclusive of interest. Recitals are subordinate to operative provisions. The guarantor was therefore liable for the secured sum plus interest before discharge.
Legal principles established
#- An application for orders of redemption is not a pleading within the meaning of section 2 of the Civil Procedure Rules, so order 2 rule 15 (striking out) does not apply to it; dismissal of such an application does not strike out the suit.
- Accounts may be ordered under order 20 rule 1 only where prayed for in the plaint or where a preliminary question to be tried is demonstrated.
- Under section 85 of the Land Act, a chargor is entitled to discharge of the charge upon payment of all moneys secured, including interest, without needing a court order; recitals in an instrument are subordinate to clear operative provisions.
Court orders
#- 1.Appeal dismissed with costs to the Bank
- On appeal from
- High Court, Commercial & Admiralty Division, Milimani, Nairobi
- Civil Suit No. 311 of 2015
- Jurisdiction invoked
- First appeal under the Court of Appeal Rules (rule 29(1) of this Court's Rules); appeal from ruling and order of the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Commcarrier Satellite Service Limited & another v Global Freight Logistics Ltd (Civil Appeal 138 of 2019) [2026] KECA 290 (KLR)[2026] KECA 290 (KLR)20 Feb 2026
- Mwambeja Ranching Company Ltd & 1 other v Kenya National Capital Corporation[2023] KECA 660 (KLR)9 Jun 2023
Cite this brief
#Cite this brief
Caselaw, "Javaid Iqbal Khan & another v Iqbal Transporters Limited & another", Case Analysis (2018). Civil Appeal No. 255 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/862/eng@2018-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.