Republic v Inspector General of Police National Police Service & 2 others Ex-Parte National Bank of Kenya Limited [2019] KEELC 1003 (KLR)
The bottom line
#The High Court in Mombasa quashed police-ordered restrictions on the bank's charged properties because no notice or hearing was given beforehand.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in placing restrictions over charged land
The respondents failed to follow Sections 76 and 77 of the Land Registration Act and denied the applicant a hearing, rendering the decision procedurally irregular and unlawful
The restriction over the suit properties was administrative action adversely affecting the bank's proprietary rights as chargee. The Registrar was obliged to direct inquiries, serve notices, and hear affected persons, and to give written notice to the proprietor. No notice or hearing was given. The decision violated Article 40, Article 47, and sections 4(3) and 4(4) of the Fair Administrative Action Act, and breached natural justice, and cannot stand.
Evidentiary weight of unchallenged sworn averments against grounds of opposition
Facts deposed on oath and not rebutted by a replying affidavit are taken as true; grounds of opposition raise only issues of law
The respondents opposed only by grounds of opposition and filed no sworn answer. Relying on Kennedy Otieno Odiyo and Kenya Akiba Micro Financing, the court held that grounds of opposition address only questions of law and unchallenged affidavit evidence stands as fact. Thus the bank's averments, including that investigations had concluded, remained uncontroverted.
Legal principles established
#- A chargee is a person entitled to inquiries, notices and a hearing under Section 76(1) of the Land Registration Act before a restriction is placed over charged property
- A decision made in breach of the rules of natural justice is null and void notwithstanding that the same result might otherwise have been reached
Court orders
#- 1.An order of certiorari issued to remove into the court and quash the decision and orders of the 1st and 2nd Respondents contained in the letter dated 21st April 2017 directing that a restriction be placed over the listed properties
- 2.An order of certiorari issued to quash the consequential decisions and orders of the Chief Lands Registrar – Mombasa implementing the directive in the letter dated 21st April 2017
- 3.Each party to bear their own costs of the motion
- Jurisdiction invoked
- Judicial review jurisdiction over administrative action, Article 47 of the Constitution and the Fair Administrative Action Act (leave granted 2nd January 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Inspector General of Police National Police Service & 2 others Ex-Parte National Bank of Kenya Limited [2019] KEELC 1003 (KLR)", Case Analysis (2019). Judicial Review Motion dated 22nd January 2019 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1003/eng@2019-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.