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ELCPartially Allowed· [2018] KEELC 2116 (KLR)

Regina Wangui Gatimu v James Mukaburu Kanyi & another [2018] KEELC 2116 (KLR)

Environment and Land Court
2 August 2018
2,239 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 forced a land guarantor to hand over 6.55 hectares as promised in a 1990 family land agreement, decades after the deal was signed.

What this practically means

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Executive summary

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Regina Wangui Gatitu, administratrix of the estate of Simon Gatimu Ndebu (deceased), sued the defendants seeking surrender of the title to parcel Euwaso Nyiro/Ilpejeta/Block 1/1160 free from encumbrance, and alternatively excision and transfer of 6.55 hectares out of parcel Euwaso Nyiro/Suguroi/Block V/220 registered in the 2nd defendant's name. Her claim rested on a 20th June 1990 agreement under which her late husband offered his title as security for the 1st defendant's loan from Kenya Commercial Bank, with the 1st defendant to repay within six months and the 2nd defendant, as guarantor, to excise an equivalent portion of his land on default. The defendants acknowledged the agreement but blamed the bank for failing to discharge the charge. At trial, the plaintiff produced the agreement, searches, a subsequent 2013 agreement granting three months to avail the title, and a demand letter. The 1st defendant admitted he did not repay within six months; the 2nd defendant did not deny the agreement but argued he was merely a guarantor and the 1st defendant was still alive. The court held the defendants were bound by the agreement, that the 2nd defendant could not escape liability on those grounds, and that no orders could issue against the absent bank. Judgment was entered compelling the 2nd defendant to excise and transfer 6.55 hectares to the plaintiff, with the suit property's rights vesting in him upon discharge of the charge. The plaintiff was awarded costs.

Key legal issues

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01

Whether the 2nd defendant, as guarantor, was bound to excise and transfer 6.55 hectares of his land to the plaintiff upon the 1st defendant's default

Holding

Yes. The 2nd defendant undertook under clause 2 of the agreement to excise an equal portion of land for the plaintiff's husband if the 1st defendant defaulted; he defaulted and the 2nd defendant was compelled to perform.

Reasoning

The court found it common ground that the parties entered into the 1990 agreement under which the plaintiff's husband offered his title as security for the 1st defendant's loan. Clause 1 obliged the 1st defendant to repay the loan within six months; clause 2 obliged the 2nd defendant to excise an equivalent portion of his land on default. Evidence showed the 1st defendant defaulted and neither defendant performed. The 2nd defendant did not deny entering the agreement; his excuses - that the 1st defendant was still alive and that he was not the beneficiary - were rejected.

02

Whether orders could issue against the bank absent its joinder

Holding

No orders affecting the bank's rights could issue because it was not a party to the suit; consequently the surrender-of-title prayer was not granted as framed.

Reasoning

The plaintiff sought return of the charged title, but the charge remained registered in favour of the bank. Since the bank was not enjoined, the court could not issue orders purporting to bind it. The court instead moulded relief to compel the 2nd defendant's contractual performance, and provided that upon excision and transfer, the suit property's rights would vest in the 2nd defendant, who could seek transfer after the bank discharged the charge.

p. 3

Legal principles established

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  • A party who has freely entered into a contract cannot escape its obligations merely because its terms are unpalatable to him or because a co-contractor is still alive
  • In a written contract, the duty of the court is to look at the document and determine whether it applies to existing facts; breach occurs when a party fails to fulfil contractual obligations
  • The court cannot make orders affecting the rights of a party who has not been joined to the suit

Court orders

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  1. 1.An order compelling the 2nd defendant to excise a portion of his land measuring 6.55 hectares out of parcel Eawaso Nyiro/Suguroi Block V/220 and transfer it to the plaintiff in accordance with clause 2 of the agreement dated 20th June 1990
  2. 2.Upon excision and transfer, all rights in the suit property shall vest in the 2nd defendant, who shall have the right to have it transferred to him after it is discharged by the bank
  3. 3.The plaintiff is awarded costs of the suit

Authorities

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Cases cited (1)

  • Nakana Trading Company Ltd V. Coffee Marketing Board
    (1990-1994) EA 448
Jurisdiction invoked
Original civil suit; specific constitutional or statutory provision not stated in the judgment

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, "Regina Wangui Gatimu v James Mukaburu Kanyi & another [2018] KEELC 2116 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2116/eng@2018-08-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.