Edith Nungari Kungu (Suing as Administratrix of the Estate of the late Damian Cosmas Kungu) v Lalang Investments Ltd & 2 others [2017] KEELC 3084 (KLR)
The bottom line
#Kenya's High Court voided a land grab built on court orders issued without notifying the owner, restoring the family's title.
What this practically means
#Executive summary
#Key legal issues
#Validity of the Raising and Vesting Orders in Municipal Case No. 599 of 1991
The orders were irregularly issued because neither the Plaintiffs nor the chargee Postbank Credit Limited were served with or notified of the proceedings, and the orders are null and void and were set aside
The Plaintiffs established that the suit property was registered in their late father's name and that the property was charged to Postbank Credit Limited. The Municipal Court's Raising and Vesting Orders of 14th December 1994 were obtained without service of process on the Plaintiff or the chargee, and without disclosure of the subsisting charge. Orders procured in that manner cannot stand, and the register is to be rectified accordingly.
Validity of the Provisional Certificate of Title and the subsequent charge to Prudential Finance Co. Ltd
The Provisional Certificate of Title issued to the 1st Defendant while the original Certificate of Title was in the custody of Postbank Credit Limited was irregularly issued and is null, void and of no effect; the resulting charge in favour of Prudential Finance Co. Ltd was declared null and void
The Plaintiffs produced the original Certificate of Title No. I.R. 14086, which they received from Postbank Credit Limited. A director of the 1st Defendant had obtained a Provisional Certificate under Section 71 of the Registration of Titles Act purporting to have lost the original, while the original remained with the chargee. The derivative charge founded on that defective title was likewise void.
Legal principles established
#- Prohibitory, Raising and Vesting Orders made without service on the affected proprietor or chargee are issued irregularly and are null and void
- A Provisional Certificate of Title issued while the original title is held by a chargee and an existing charge is registered is irregular and of no effect
Court orders
#- 1.A permanent injunction restraining the Defendants from dispossessing the Plaintiffs or their tenants, licensees, agents or servants of the suit property, or demanding rents, or dealing, transferring, charging or alienating the suit property
- 2.A declaration that the Raising Order and the Vesting Order are null and void and of no effect and that the Register at the Land Titles Registry be rectified accordingly
- 3.A declaration that the issuance of the Provisional Certificate of Title is null and void and of no effect and that the Land Titles Register be rectified accordingly
- 4.A declaration that the charge in favour of Prudential Finance Co. Ltd is null and void and that the Land Titles Register be rectified accordingly
- 5.The Raising and Vesting Orders given and issued on 14th December 1994 were set aside
- 6.Costs of the suit awarded to the Plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over claims to land and declarations of invalidity of court orders and register entries (not expressly stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edith Nungari Kungu (Suing as Administratrix of the Estate of the late Damian Cosmas Kungu) v Lalang Investments Ltd & 2 others [2017] KEELC 3084 (KLR)", Case Analysis (2017). Not stated in judgment (formerly Damian Cosmus Kungu v Lalang Investment Limited & Others, Amended Plaint dated 9th March 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3084/eng@2017-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.