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ELCDismissedPlaintiff's Motion dated 18 October 2010 in suit commenced by plaint filed 8 March 2006· [2013] KEELC 102 (KLR)

Oriental Commercial Bank Ltd v Japhet Ogendo Owuor [2013] KEELC 102 (KLR)

Environment and Land Court
11 June 2013
1,403 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to mark a land charge dispute as settled because the bank proved no agreement with the defendant and no evidence that the charge was ever discharged.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (Munyao Sila, J) dated 11 June 2013 on the plaintiff's Motion dated 18 October 2010, brought under Order XXIV Rule 6 and Order L Rule 1 of the former Civil Procedure Rules, seeking an order that the defendant be deemed to have satisfied the plaintiff in respect of the whole subject matter of the suit and that judgment be entered accordingly, with costs. The underlying suit, commenced by plaint on 8 March 2006, sought a declaration that the fraudulent discharge of a charge registered on 24 July 1997 over Eldoret Municipality Block 10/107 (securing facilities to Agro-Millers Ltd) was unlawful and that the charge be restored. The defendant denied the fraud, denied privity with the plaintiff, and challenged the plaintiff's locus standi. The plaintiff's application was supported by affidavits deponing that the Land Registrar had reinstated the charge on 4 May 2006. The defendant opposed, arguing that a declaration requires proof by evidence, that there was no compromise by the defendant, and that the official search showed no discharge at all. The court held that Order XXIV Rule 6 presupposes either a lawful agreement or compromise between the parties or satisfaction by the defendant; a reinstatement effected by the Lands Registrar, a non-party, satisfied neither condition. The official search disclosed no discharge and no reinstatement. The application was dismissed with costs, with liberty left to the plaintiff either to withdraw the suit or to set it down for hearing.

Key legal issues

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01

Whether the suit was compromised or satisfied so as to be marked as settled under former Order XXIV Rule 6

Holding

No. There was neither a lawful agreement or compromise between the parties nor satisfaction by the defendant; the alleged reinstatement of the charge was effected by the Land Registrar, a non-party, and the defendant denied the alleged fraud and reinstatement

Reasoning

The court construed former Order XXIV Rule 6 as requiring proof of adjustment by lawful agreement or compromise, or satisfaction by the defendant of the whole suit. Here the plaintiff relied on unilateral action by the Lands Registrar, who was not even a properly joined party, and the defendant admitted no compromise. Accordingly the factual and legal predicates for recording a compromise or satisfaction were absent.

p. 3
02

Whether the evidence established the alleged discharge and reinstatement of the charge

Holding

No. The official search annexed to the further affidavit showed registration of the charge on 24 July 1997 but showed no discharge and no reinstatement, so the court could not hold that a discharge occurred or that it was reinstated on 4 May 2006

Reasoning

The court examined the official search dated 21 November 2011 annexed to Mr. Mwetich's affidavit. It disclosed the registration of the charge but no entry of discharge, and no subsequent reinstatement. The affidavit of Ms Jethwa also referenced annexures 'A' and 'B' which were not in fact annexed. On that material the alleged discharge and reinstatement were unsupported by evidence.

p. 3
03

Whether the Lands Registrar and the Attorney General were parties to the suit

Holding

No. Although the application was titled as against a 2nd and 3rd defendant, there was no amendment to the plaint and no joinder of the Lands Registrar or the Attorney General; the matter lay only between the plaintiff and the original defendant

Reasoning

The court noted the title of the application suggested a 2nd and 3rd defendant, and that State Law Office counsel had attended, but no amendment or joinder was on record. The suit therefore remained squarely between the plaintiff and the sole defendant, which reinforced that any action by the Lands Registrar could not constitute satisfaction by the defendant.

p. 2

Legal principles established

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  • Order XXIV Rule 6 of the former Civil Procedure Rules presupposes either a lawful agreement or compromise between the parties, or satisfaction of the plaintiff by the defendant, before a suit may be recorded as settled and judgment entered accordingly
  • A reinstatement of a charge effected by a third party who is not a party to the suit cannot amount to satisfaction by the defendant for purposes of recording compromise or satisfaction under the rule
  • A party who believes there is no substratum left in its suit should withdraw the suit rather than seek to have it marked as settled without the opposing party's agreement

Court orders

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  1. 1.The plaintiff's Motion dated 18 October 2010 is dismissed with costs
  2. 2.Liberty effectively left to the plaintiff either to withdraw the suit or to list it for hearing

Authorities

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Legislation

  • Civil Procedure Rules (former)Order XXIV Rule 6
  • Civil Procedure Rules (former)Order L Rule 1
  • Civil Procedure Rules (former)Order XXVI Rule 6
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute concerning a charge over land, Eldoret Municipality Block 10/107; the application brought under Order XXIV Rule 6 and Order L Rule 1 of the former Civil Procedure Rules

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, "Oriental Commercial Bank Ltd v Japhet Ogendo Owuor [2013] KEELC 102 (KLR)", Case Analysis (2013). Plaintiff's Motion dated 18 October 2010 in suit commenced by plaint filed 8 March 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/102/eng@2013-06-23

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