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ELCAllowedMombasa ELC Misc. JR (Not fully stated in judgment)· [2020] KEELC 768 (KLR)

National Bank of Kenya Ltd v Inspector General of Police National Police Service & 2 others [2020] KEELC 768 (KLR)

Environment and Land Court
7 October 2020
5,522 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed property restrictions imposed on a bank's charged land because authorities never gave the bank notice or a hearing.

What this practically means

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Executive summary

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National Bank of Kenya, as chargee over numerous suit properties, obtained leave to commence judicial review seeking certiorari to quash (i) the decision of the Directorate of Criminal Investigations and Banking Fraud Investigation Department directing, by letter dated 21st April 2017, the placement of restrictions over the suit properties, and (ii) the consequential implementation of that directive by the Chief Lands Registrar, Mombasa. The bank contended it was given no notice or hearing contrary to Sections 76 and 77 of the Land Registration Act, 2012 and the Fair Administrative Action Act; that its statutory power of sale had crystalised; and that the restriction, tied to pending investigations, effectively granted defaulting borrowers injunctions through the backdoor. The respondents opposed through grounds of opposition, arguing the restriction preserved the estate of the late Tahir Sheikh Said pending Criminal Case No. 220 of 2017. The court held the facts deposed by the applicant stood uncontroverted since grounds of opposition address only issues of law; that the chargee was a person entitled to inquiries, notices and a hearing under Section 76(1); and that the charge sheet demonstrated investigations were concluded, making the claim of ongoing investigations untrue. The decision was found to be tainted with procedural irregularity, an error of law, disproportionate, and in breach of natural justice and Articles 40 and 47 of the Constitution. The Notice of Motion dated 22nd October 2019 was allowed in its entirety, quashing both the directive and the consequential restrictions, with each party bearing its own costs.

Key legal issues

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01

Whether the placement of the restriction without notice or hearing violated Sections 76 and 77 of the Land Registration Act and the Fair Administrative Action Act

Holding

Yes; the Registrar was obliged to direct inquiries, serve notices and accord the chargee a hearing prior to placing the restriction, and failure to do so rendered the decision procedurally irregular and unlawful

Reasoning

The court found it undisputed that the properties were charged to the bank and that the restriction was an administrative action. Section 76(1) requires the Registrar, before making a restriction, to direct inquiries, serve notices and hear persons considered fit, including a chargee. Section 77(1) requires written notice to the affected proprietor. No evidence of compliance was presented; the respondents filed only grounds of opposition, leaving the applicant's averments uncontroverted. The decision therefore breached natural justice and the Fair Administrative Action Act.

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Whether the respondents' claim that investigations were ongoing justified maintaining the restriction

Holding

No; the charge sheet in Mombasa Criminal Case No. 220 of 2017 showed investigations were concluded and charges filed, so the basis for the restriction was spent and the claim that investigations were ongoing was untrue

Reasoning

The letter of 21st April 2017 directed the restriction pending investigation. The applicant produced the charge sheet showing accused persons had been arraigned and hearings underway, demonstrating investigations were complete. The respondents filed no affidavit rebutting this. The court held the respondents' submission that investigations were ongoing to be untrue, so continuing the restriction was unfair, unprocedural and illegal.

p. 6

Legal principles established

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  • A chargee is a person fit to be given notice and a hearing before a restriction is placed over charged property; failure to comply with Sections 76 and 77 of the Land Registration Act taints the restriction with procedural irregularity
  • Where a party has not been heard, a decision made in breach of natural justice is null and void

Court orders

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  1. 1.An order of certiorari to remove into the court and quash the decision and orders of the National Police Service - Directorate of Criminal Investigations and the Banking Fraud Investigation Department contained in the letter dated 21st April, 2017 directing that a restriction be placed over the listed suit properties
  2. 2.An order of certiorari to quash the consequential decision and orders of the Chief Lands Registrar - Mombasa implementing the directive in the letter dated 21st April 2017 over the listed properties
  3. 3.Each party to bear their own costs of the motion

Authorities

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Legislation

  • Law Reform ActSection 8(2) & (4) & 9
  • Fair Administrative Action Act No. 4 of 2015Sections 4(3)(a) and (b), 4(4)(a) and (b), 7(a) & 9(1)
  • Civil Procedure RulesOrder 53 Rule 1(3)
  • Constitution of KenyaArticles 40, 47, 50(1)
  • Land Act
  • Land Registration Act No. 3 of 2012Sections 76, 77(1)
  • National Police Service Act No. 11A of 2011Section 51

Cases cited (9)

  • Republic -v- National Land Commission Ex parte Satellite Industrial Supplies Limited
    (2018) eKLR
  • Kennedy Otieno Odiyo & 12 Others -v- Kenya Electricity Generating Company Limited
    (2010) eKLR
  • Ezekiel Misango Mutisya -v- National Land Commission & 6 Others
    (2014) eKLR
  • Itrade Company Limited -v- Jane Mukami Mwangi & Another
    (2015) eKLR
  • David Macharia Kinyuru -v- District Land Registrar, Naivasha & Another
    Nakuru ELC Misc. Appl No. 331 of 2016
  • Republic -v Commissioner of Police and Another Ex-Parte Michael Monari & Another
    (2012) eKLR
  • Republic -v- Inspector General of Police & 2 Others Ex-Parte National Bank of Kenya Limited
    Mombasa ELC Misc. JR. No. 1 of 2019
  • Civil Service (1985) AC 373
    401D
  • Onyango Oloo -v- Attorney General
    (1989) EA
Jurisdiction invoked
Judicial review under Section 8(2) & (4) & 9 of the Law Reform Act Cap 26, Section 7(a) & 9(1) of the Fair Administrative Action Act No. 4 of 2015 and Order 53 Rule 1(3) of the Civil Procedure Rules

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, "National Bank of Kenya Ltd v Inspector General of Police National Police Service & 2 others [2020] KEELC 768 (KLR)", Case Analysis (2020). Mombasa ELC Misc. JR (Not fully stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/768/eng@2020-10-07

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