Malkit Singh Pandhai v NIC Bank Limited & 3 others [2017] KEELC 2819 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an unregistered tenant under an unregistered lease is entitled to notice under Section 96(3) of the Land Act before a chargee exercises power of sale
Only persons whose interests are registered or otherwise known to the chargee are entitled to service; an unregistered lease unknown to the chargee confers no such entitlement
Section 96(3) obliges the chargee to serve persons it knows or can identify, principally by checking the register of the charged land. The applicant's lease was unregistered and never brought to the chargee's attention at or after execution of the charge. Both valuation reports on the property, one commissioned by the chargee, disclosed no tenant. The court therefore found the applicant was not among the persons entitled to the statutory notice.
Whether the applicant established a right or interest qualifying him for enjoinment as a necessary/interested party
He did not; the application for enjoinment was dismissed
The court found the valuation reports contradicted the claim of tenancy and that the timing of the application, coming immediately after the dismissal of the Plaintiff's application on 19th October 2016, showed the applicant was acting in concert with the Plaintiff to buy time. He was not privy to the charge and had no recognizable interest warranting enjoinment.
The validity and life span of the interim orders issued by the magistrate and extended by the Deputy Registrar
The interim orders lapsed automatically when the matter was not placed before the Judge and there were no orders capable of extension
Rule 21 of the ELC Practice Directions allows a Deputy Registrar to grant interim orders on urgent interlocutory applications only pending listing before a Judge; it does not permit the Deputy Registrar to extend such orders. As the matter was never placed before the Judge, the order issued by Hon. Obutu on 21st October 2016 lapsed on 26th October 2016, and all subsequent extensions were of no effect.
Legal principles established
#- Persons entitled to service of a statutory notice under Section 96(3) of the Land Act before exercise of a chargee's power of sale are those in the knowledge of the chargee, identifiable in particular from registration of their interests on the register of the charged land
- An interim order issued by a magistrate or Deputy Registrar under the ELC Practice Directions lapses automatically if the matter is not placed before the Judge, and cannot be extended by the Deputy Registrar
- Multiple applications seeking injunctive relief without prosecuting the main suit are contrary to Sections 1A and 1B of the Civil Procedure Act
Court orders
#- 1.The notice of motion dated 20th October 2016 is dismissed
- 2.Costs of the application awarded to the Defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over charged land (Kisumu Municipality/Block 8/204); interim and interlocutory applications under the Civil Procedure Act and Rules and the Land Act No. 6 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malkit Singh Pandhai v NIC Bank Limited & 3 others [2017] KEELC 2819 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2819/eng@2017-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.