Credit Agricole Corporate and Investment Bank (formerly known as Calyon and formerly also known as Credit Agricole Indosuez and formerly also known as Bangue Indosuez) v Registrar of Titles, Mombasa & 2 others [2017] KEELC 3037 (KLR)
The bottom line
#A Kenyan court confirmed that land restrictions cannot be registered without notifying the owner and giving reasons — and removed one that was.
What this practically means
#Executive summary
#Key legal issues
#Capacity of an advocate to swear supporting affidavits
An advocate with conduct of the matter may swear to facts within his own knowledge that are not contested; the objection conflated instructions to conduct proceedings with capacity to depone
Mr Gor was the applicant's advocate in HCC No 35 of 1997 and had represented it since 1986. The facts deposed to were within his personal knowledge and supported by annextures, not belief or information. The 1st Interested Party's concern about instructions went to authority to conduct proceedings, not capacity to swear affidavits, and the objection failed.
Competency of an originating motion under the Fair Administrative Actions Act as opposed to judicial review
The application was competent; the case law cited was distinguished and section 78(2) of the Land Registration Act provides a specific procedure
The Fair Administrative Actions Act was enacted to realise constitutional rights and is subject to Article 159(2)(d) on procedural technicalities. Section 78(2) of the Land Registration Act gives a specific procedure. The 1st Interested Party cited no specific statutory provision requiring judicial review, so the cited case law was distinguishable and the mode of filing was proper.
Board resolution requirement
The objection failed; the applicant was licensed, not registered under the Companies Act, and no evidence showed Cap 486 applied; the objectors were approbating and reprobating
Under French Law no board resolution was required, as evidenced by the opinion annexed. The 1st Interested Party could not claim the applicant lacked locus for not operating in Kenya while simultaneously submitting it was subject to local Companies Act requirements. No evidence or case law demonstrated Cap 486 applied to the applicant.
Lawfulness of the restriction for non-compliance with section 76 of the Land Registration Act
The restriction was unlawful; the Respondent did not deny placing it, did not deny non-compliance with section 76, and the lis pendens argument failed as the restriction came over 10 years after the suit
The Respondent never denied placing the restriction or failing to comply with sections 76, 77 and 78 of the Land Registration Act. No court order supported the restriction, and registering it in 2015 over a suit filed in 1997 could not be justified as lis pendens. The applicant was genuinely aggrieved and entitled to relief.
Legal principles established
#- A Registrar must comply with section 76 of the Land Registration Act, including notifying the affected proprietor and stating reasons and duration, before registering a restriction
- Courts should not give due regard to procedural technicalities under Article 159(2)(d), and a party aggrieved by administrative action may move the Court by originating motion rather than judicial review
- He who alleges must prove; a party alleging that the Companies Act board resolution requirement applies must demonstrate it
Court orders
#- 1.Declaration that the restriction registered by the Registrar of Titles, Mombasa on the title of the suit property is unlawful
- 2.Removal of the restriction registered on the title of the suit property
- 3.Costs of the motion awarded to the Applicant
- Jurisdiction invoked
- Sections 7, 9, 11 and 12 of the Fair Administrative Actions Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Credit Agricole Corporate and Investment Bank (formerly known as Calyon and formerly also known as Credit Agricole Indosuez and formerly also known as Bangue Indosuez) v Registrar of Titles, Mombasa & 2 others [2017] KEELC 3037 (KLR)", Case Analysis (2017). Misc. Civil Application No. 29 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3037/eng@2017-04-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.