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ELCDismissedELC No. 941 of 2016 (Consolidated with ELC No. 947 of 2016)· [2017] KEELC 463 (KLR)

Equity Bank Limited & another v Kinjunje Gardens Limited & 6 others [2017] KEELC 463 (KLR)

Environment and Land Court
19 December 2017
5,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to stop Co-op Bank from selling the land because its charge was registered first and takes priority over later charges.

What this practically means

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Executive summary

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Equity Bank Limited (ELC No. 941 of 2016) and Commercial Bank of Africa Limited (ELC No. 947 of 2016) filed separate suits, later consolidated, against Co-operative Bank of Kenya, Leakey's Auctioneers, the Chief Land Registrar and Patrick Kangethe Njuguna, with additional defendants Kinjunje Gardens Limited, Margaret Wambui Kangethe and Wardpa Holdings Limited. Each bank claimed a charge over Title No. Dagoretti/Riruta/2289 and sought temporary injunctions to restrain Coop Bank and the auctioneer from selling the suit property on 5th August 2016, alleging Coop Bank's charge was registered on a parallel fraudulent title created by the Kangethe family in collusion with the Land Registrar. Coop Bank countered that its charge, registered in September 2010 against a 1997 title in Patrick Njuguna's name, was the first in time, that it still held the original title deed, and that the later titles relied on by the plaintiff banks were the fraudulent ones. Considering the applications by way of written submissions, the court applied the Giella v Cassman Brown principles and the first-in-time priority doctrine under the repealed Registered Land Act. It held that Coop Bank's charge, being first registered and undischarged, must prevail; the titles against which the plaintiffs' charges were registered did not exist when Coop Bank's charge was created; and the plaintiffs' rights were at best secondary. Fraud was likely in the creation of the parallel titles but did not taint Coop Bank's transaction. The alleged loss was quantifiable and compensable in damages. Both applications were dismissed with costs in the cause.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

Equity and Commercial Bank failed to demonstrate a prima facie case with probability of success against Coop Bank because Coop Bank's charge was the first in time, registered in 2010 against a genuine title issued in 1997, with no evidence of discharge or consent to subsequent transfers

Reasoning

The court traced the registration history: Coop Bank's charge was registered in September 2010 when Patrick Njuguna was the registered owner under a 1997 title. The titles against which Commercial Bank's and Equity's charges were registered did not exist at that time. Coop Bank never consented to any transfer or further charging, and its charge remains undischarged. The plaintiffs' rights, if any, are secondary to Coop Bank's, so no protected right was threatened.

p. 7
02

Alleged parallel fraudulent title in favour of Coop Bank

Holding

The allegation that Coop Bank's charge was registered on a parallel fraudulent title was far-fetched; any fraudulent parallel titles were those created later in favour of Wardpa and Kinjunje

Reasoning

Coop Bank's charge was registered in 2010 before the Wardpa (2012) and Kinjunje (2014) titles came into existence, so those titles could not be parallel to it. There was no evidence that Coop Bank was involved in any fraud or that its transaction with Patrick Njuguna was affected by fraud. The court accepted the likelihood of fraud by the Kangethe family entities in creating multiple titles, but that did not implicate Coop Bank's security.

p. 7
03

Irreparable injury and adequacy of damages

Holding

The plaintiffs failed the irreparable injury limb because the possible loss is quantifiable and compensable in damages, with no evidence Coop Bank could not pay

Reasoning

The court found the amounts owed to Equity and Commercial Bank are ascertainable debts and any loss from sale of the security would be monetary in nature. There was no evidence that Coop Bank would be unable to pay damages if at trial it were found to have no right to sell. The balance of convenience limb therefore did not arise for determination in the plaintiffs' favour.

p. 8

Legal principles established

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  • Interests appearing in the register have priority according to the order in which the instruments leading to registration were presented; the first charge in time prevails over subsequent charges
  • Where two titles are issued over the same parcel, the first in time prevails and retains its sanctity; the second title can be challenged

Court orders

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  1. 1.The Notice of Motion dated 3rd August, 2016 by Equity Bank Limited is dismissed
  2. 2.The Notice of Motion dated 4th August, 2016 by Commercial Bank of Africa Limited is dismissed
  3. 3.The costs of the two applications shall be in the cause

Authorities

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Legislation

  • Registered Land Act, Chapter 300 Laws of Kenya (now repealed)Section 42(1)
  • Registered Land Act, Chapter 300 Laws of Kenya (now repealed)Section 70
  • Registered Land Act, Chapter 300 Laws of Kenya (now repealed)Section 23(1)

Cases cited (7)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Mrao Limited vs. First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others
    [2015] eKLR
  • Gitwany Investment Limited vs. Tajmal Limited & 2 others
    (2006) eKLR
  • Wreck Motors Enterprises vs. Commissioner of Lands
    C.A. No. 71/1997 (unreported)
  • Faraj Maharus vs. J.B. Martin Glass Industries and 3 others
    C.A 130/2003 (unreported)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to title and charges over land

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, "Equity Bank Limited & another v Kinjunje Gardens Limited & 6 others [2017] KEELC 463 (KLR)", Case Analysis (2017). ELC No. 941 of 2016 (Consolidated with ELC No. 947 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/463/eng@2017-12-19

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