Prime Bank Limited v Jane Gakii Marete & another [2017] KEELC 3580 (KLR)
The bottom line
#A Kenyan court removed a caveator's claim to land because an earlier registered charge takes priority, even though the applicant cited the wrong legal rule.
What this practically means
#Executive summary
#Key legal issues
#Competence of the originating motion for citing Order 37 rule 7 instead of rule 5
The defect is a curable procedural technicality, not fatal
The court noted Order 37 rule 5 expressly allows an application under section 57 of the Registration of Titles Act to be made by originating summons, so the motion was competent in substance. Citing rule 7 (adverse possession) instead of rule 5 was an anomaly. Relying on Crown Paints v Dry Associates, the court held that quoting a wrong provision is a technicality to be overlooked for substantive justice under Article 159(2)(d), since the respondent knew the claim and could defend it.
Whether the caveat was wrongful given the earlier registered charge
Yes; the charge, registered in April 1996, had priority over the caveat registered in October 1998
The chargee registered its charge in 1996 for a loan of Kshs 550,000; the caveat came two years later. The 1st Respondent had notice of the charge, as shown by clause 12 of her sale agreement, and her remedy lies in the liquidated damages of Kshs 1 million against the vendor, not in the caveat. The equity of 'first in time prevails' and chargee priority support removal.
Waiver of statutory power of sale and limitation
Both arguments failed for want of supporting basis
The 1st Respondent contended the applicant's decree in HCC 233 of 2007 extinguished its statutory power of sale, and that the application was time barred. The court found no basis was laid for either contention, noting the applicant could still sell the property in execution of the decree, and that the respondent's own 16-year inaction risked her contract claim being limitation-barred.
Legal principles established
#- Citing the wrong procedural rule is a curable procedural technicality under Article 159(2)(d) of the Constitution where no injustice is occasioned
- A chargee has priority to realise the security over other interests registered later, and a caveat lodged after the charge with notice of it should be removed where the caveator has an alternative remedy
Court orders
#- 1.Finding that caveat No. 15351/6 registered on 14th October 1998 is wrongful
- 2.Order for removal of caveat No. 15351/6 registered on 14th October 1998
- 3.Declaration that the applicant is entitled to realise its security being its registered charge over Land Reference No. 2544/Section 1/Mainland
- 4.Each party to bear their respective costs of the summons
- Jurisdiction invoked
- Section 57(5) & (6) and section 64 of the Registration of Titles Act (Cap 285, repealed); Order 37 rule 5 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Prime Bank Limited v Jane Gakii Marete & another [2017] KEELC 3580 (KLR)", Case Analysis (2017). Originating motion dated 6th February 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3580/eng@2017-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.