Peter Wainaina Kamau v Naomi Wanjiku Kinyanjui & another [2018] KEELC 390 (KLR)
The bottom line
#A buyer who paid off a seller's bank loan won the land, and the bank couldn't deny dealing with him.
What this practically means
#Executive summary
#Key legal issues
#Privity of contract between the Plaintiff and the 2nd Defendant
The court held the Plaintiff was not a stranger to the bank's charge; the bank knowingly accepted his payments under a private treaty arrangement long after its own deadline, and the Plaintiff was not seeking to enforce a contract with the bank, so privity was no bar to relief.
The bank accepted the chargor's request to sell by private treaty to the Plaintiff, set conditions for releasing the title and discharge, and accepted the Plaintiff's payments toward full settlement of the loan well beyond the 60-day deadline. Having accepted payment in full on that basis, the bank could not resile and deny privity. Moreover, the Plaintiff did not seek to enforce a contract with the bank but sought release of the title he had effectively redeemed.
Voidness for want of Land Control Board consent and estoppel
The court found for the Plaintiff notwithstanding the 1st Defendant's plea that the controlled transactions were void; the Defendants' conduct, including the consent recorded on 1/3/2012 committing the chargor to obtain Land Control Board consent and the bank's acceptance of redemption payments, defeated the plea. The 1st Defendant failed to prove her counterclaim.
The 1st Defendant relied on sections 6(1) and 7 of the Land Control Act to argue the agreements were void. The court noted the consent recorded in court on 1/3/2012 made the late John Kinyanjui responsible for obtaining the consent, and that consent was never challenged. Both defendants admitted the Plaintiff redeemed the loan; the 1st Defendant gave no evidence of payments by her father. The 1st Defendant's counterclaim was dismissed.
Exhumation of remains interred on the Suit Property
The court refused to order exhumation, holding that the procedure for exhumation is set out in the Public Health Act and the Plaintiff may apply for a permit under that Act.
Although the Plaintiff sought exhumation of the graves of the 1st Defendant's parents interred on the purchased land, the court found no power or basis to order exhumation directly, since exhumation is regulated by the Public Health Act, under which the Plaintiff could seek a permit.
Legal principles established
#- A party who knowingly accepts payment from a purchaser towards settlement of a loan secured on property being sold by private treaty, and permits the sale process, cannot deny the purchaser's standing; the purchaser need not establish strict privity to claim relief connected to the redemption.
- A party seeking release of a title deed and discharge of charge must show that the debt secured by the charge was paid, including by evidence that its own funds discharged the loan.
Court orders
#- 1.Prayers a, b, d, e and f of the Amended Plaint dated 31/7/2017 granted
- 2.The 1st Defendant's counterclaim dismissed with costs to the Plaintiff
- 3.The court declined an order for exhumation of remains interred on the Suit Property, leaving the Plaintiff free to apply for a permit under the Public Health Act
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Wainaina Kamau v Naomi Wanjiku Kinyanjui & another [2018] KEELC 390 (KLR)", Case Analysis (2018). E.L.C. Suit No. 664 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/390/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.