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ELCPartially AllowedNot stated in judgment· [2017] KEELC 2421 (KLR)

Sidian Bank Limited v Alice Awalo Litunya & 4 others [2017] KEELC 2421 (KLR)

Environment and Land Court (High Court sitting at Kajiado)
13 June 2017
COCHRISTINE OCHIENG
2,083 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court froze a disputed Kajiado property until trial, refusing to reinstate a contested charge amid forgery allegations.

What this practically means

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Executive summary

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The Plaintiff bank moved the court by notice of motion dated 22nd November 2016 under Section 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking temporary injunctions restraining the Defendants from dealing with Title Number Kajiado/Kaputei North/24052 and orders directing the Land Registrar, Kajiado to reinstate a charge dated 5th December 2014 securing Kshs. 50 million. The Plaintiff averred that the 2nd Defendant borrowed the sum, secured by a charge over the 1st Defendant's property; that the 1st Defendant fraudulently caused the original Green Card to disappear and a new register reconstructed via Gazette Notice No. 8982, leaving the property appearing unencumbered. The 1st Defendant denied signing the charge, alleging she was in Uganda working for UNHCR and reporting the fraud to the CID. The 2nd-4th Defendants admitted the loan and arrears, offering to repay. The 5th Defendant (Land Registrar) deponed that the registry was closed on 5th December 2014, no charge was registered, and the charge documents were forgeries. Framing the main issue as whether the property was charged to the Plaintiff, the court applied the Giella v Cassman Brown principles and Ougo v Otieno, holding that serious conflicts of fact could only be resolved at trial. It granted only prayer 5 - a temporary injunction preserving the suit property pending determination of the main suit - and declined the reinstatement orders. Costs were reserved to the cause, with directions to comply with Order 11.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for a temporary injunction over Kajiado/Kaputei North/24052

Holding

Prayer 5 granted: the property is preserved pending trial

Reasoning

The court found triable issues and serious conflicts of fact between the parties (alleged forgery of the charge, disputed signatures, disputed reconstruction of the Green Card). Citing Ougo v Otieno, the court held such conflicts can only be resolved at full hearing, so the appropriate interlocutory remedy was preservation of the property by injunction rather than reinstatement of the charge.

p. 4
02

Whether the charge dated 5th December 2014 was validly registered

Holding

Left unresolved at interlocutory stage

Reasoning

The Plaintiff's deponents (Kwesiga and Wambua) averred the 1st Defendant executed the charge and was told no spousal consent was needed as she was a widow. The 1st Defendant denied signing, produced her passport showing she was in Uganda, and reported fraud to the CID. The 5th Defendant averred the registry was closed on 5th December 2014 and the charge documents were forgeries. The court held these conflicts must go to trial.

p. 4

Legal principles established

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  • Where there are serious conflicts of facts at an interlocutory stage, the court should maintain the status quo until the dispute is decided at trial.
  • The Giella v Cassman Brown principles govern the grant of temporary injunctions.

Court orders

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  1. 1.Prayer No. 5 of the Motion granted: a temporary injunction restraining the Defendants, severally and jointly, whether by themselves, their servants, proxies or any other person acting under their authority, from charging, selling, alienating and/or transferring or otherwise dealing with Title Number Kajiado/Kaputei North/24052 pending the hearing and determination of the main suit.
  2. 2.Parties urged to comply with Order 11 and set the suit down for hearing.
  3. 3.Costs in the cause.

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40 (1) & (2)
  • Civil Procedure RulesOrder 11
  • Companies Actnot specified (relied on by 2nd-4th Defendants on joinder of directors)

Cases cited (3)

  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Ougo & Anor Versus Otieno
    1987 KLR 364
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 40 (1) & (2) of the 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, "Sidian Bank Limited v Alice Awalo Litunya & 4 others [2017] KEELC 2421 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2421/eng@2017-06-13

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