National Bank of Kenya Ltd v Inspector General of Police National Police Service & 2 others [2020] KEELC 768 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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
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.
Whether the respondents' claim that investigations were ongoing justified maintaining the restriction
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
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.
Legal principles established
#- 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
#- 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.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.Each party to bear their own costs of the motion
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.