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ELCAllowedMisc. Civil Application No. 29 of 2016· [2017] KEELC 3037 (KLR)

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)

Environment and Land Court
25 April 2017
2,135 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicant bank, mortgagee under a 1993 charge and 1996 further charge over the suit property, moved the Court by originating motion under sections 7, 9, 11 and 12 of the Fair Administrative Actions Act seeking declarations that a restriction registered by the Registrar of Titles, Mombasa on the title was unlawful, its removal, and an order directing registration of a transfer to a purchaser (the 2nd Interested Party, which had bought the property at a 2011 public auction). The Respondent and the 1st Interested Party opposed. The 1st Interested Party argued that the supporting affidavits sworn by C. B. Gor, the applicant's advocate, should be expunged for lack of authority, that the application was incompetent for want of a board resolution and for not being brought as judicial review, and that the restriction preserved its pending suit HCCC No 35 of 1997. The Court framed three issues. It held the affidavits were proper, being based on facts within the advocate's knowledge and uncontested. It rejected the competency objections, holding the cited case law distinguishable, that Article 159(2)(d) disfavours procedural technicalities, that section 78(2) of the Land Registration Act provides a specific procedure, and that no evidence showed Cap 486 applied to a foreign bank merely licensed to operate in Kenya. On the merits, the Respondent did not deny registering the restriction or breaching section 76; the lis pendens justification failed since the restriction was placed in 2015 over a suit filed in 1997 and no court order supported it. The Court found the applicant genuinely aggrieved and allowed the application, awarding the applicant costs.

Key legal issues

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01

Capacity of an advocate to swear supporting affidavits

Holding

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

Reasoning

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.

p. 3
02

Competency of an originating motion under the Fair Administrative Actions Act as opposed to judicial review

Holding

The application was competent; the case law cited was distinguished and section 78(2) of the Land Registration Act provides a specific procedure

Reasoning

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.

p. 3
03

Board resolution requirement

Holding

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

Reasoning

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.

p. 3
04

Lawfulness of the restriction for non-compliance with section 76 of the Land Registration Act

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Declaration that the restriction registered by the Registrar of Titles, Mombasa on the title of the suit property is unlawful
  2. 2.Removal of the restriction registered on the title of the suit property
  3. 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

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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, "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.