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ELCPartially AllowedELC No. 854 of 2014 (formerly HCCC No. 408 of 2012)· [2020] KEELC 2520 (KLR)

Benard Mulongo Mwanja (Suing on his behalf and on behalf of 19 others) v Charles Mbugua Ngugi; Bank of Africa Kenya Ltd (Proposed Interested Party) [2020] KEELC 2520 (KLR)

Environment and Land Court
5 May 2020
2,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a bank's charge over land because the bank only did a registry search and never visited the property where buyers had already built homes.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (E. O. Obaga, J) dealt with three applications arising from a suit filed in 2012 by twenty purchasers against the registered owner of LR No. 26693/14 Kikuyu, from whom they bought portions between 2002 and 2008. Judgment had been entered in their favour on 3rd March 2017. Bank of Africa Kenya Limited, holding a charge (2011) and further charge (2014) over the land securing a loan to Africair Management & Logistics Limited, sought joinder as an interested party and setting aside of the judgment, arguing it was condemned unheard. The court allowed joinder but refused to set aside the judgment, holding that a registry search was insufficient and the Bank ought to have visited the land where the Decree Holders had built homes; the Judgment Debtor was clearly out to defraud the purchasers, and the Bank's remedy, if any, lay in debt or restitution. Applying Moses Kariuki Wachira v Joseph Muriithi Kanyita, the court found the title not good for charging. The Decree Holders' own application succeeded: the charge and further charge were to be discharged, a vesting order issued over only the portions the Decree Holders occupy, and the Judgment Debtor to sign transfers, failing which the Deputy Registrar to execute. Moses Mukundi Chege, a late-coming purchaser, was joined as a plaintiff but refused leave to file pleadings, since judgment had already been delivered and he could not ride on the Decree Holders' judgment. Costs were awarded to the Respondents on the first application, with no order as to costs on the third.

Key legal issues

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01

Whether the Bank of Africa should be enjoined as an interested party and whether the 2017 Judgment should be set aside

Holding

Joinder granted; setting aside refused because the Bank failed to exercise due diligence and the Judgment Debtor was out to defraud the Decree Holders, who were in occupation of the portions they bought.

Reasoning

The Court found that the Bank relied merely on a registry search which showed no encumbrances, whereas its officials would have seen homes on the land had they visited. The history of the property was shrouded in secrecy, sale agreements used different LR numbers, and the Judgment Debtor, who claimed ADHD as a defence, went on to charge the very land he had partly sold. Setting aside the judgment would reward fraud and prejudice the Decree Holders.

p. 2
02

Whether the charge should be discharged and the portions vested in the Decree Holders

Holding

The second application succeeds; the title to be discharged and the portions occupied by the Decree Holders to vest in them, with transfers executed by the Judgment Debtor or the Deputy Registrar in default.

Reasoning

The Court held that the Judgement Debtor knew the property was not available for charging having already sold portions, and the Bank must have been aware of the presence of the Decree Holders. Since the Decree Holders transacted first, their rights prevail over the chargee. Discharge and vesting are necessary to enable the Decree Holders to pursue their respective portions, limited to what they occupy.

p. 3
03

Whether the third applicant could file pleadings to pursue his own claim after judgment

Holding

Joinder as plaintiff allowed but leave to file pleadings declined; he must prove his own case and cannot ride on the Decree Holders' judgment.

Reasoning

The Applicant did not clarify when he purchased his portion and was trying to come into the proceedings late, after judgment had been delivered. He must prove his case before obtaining judgment and cannot use a shortcut through the existing judgment of the twenty Decree Holders.

p. 3

Legal principles established

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  • A title holder who sells portions of land to purchasers who take possession cannot thereafter validly charge the same portions to a bank; such a charge is illegal, null and void and without contractual effect, leaving the chargee a remedy in debt or restitution against the chargor
  • A chargee must do due diligence beyond a registry search, including visiting the land, before accepting it as security
  • Purchasers in possession who first transacted with the owner have prior rights that cannot be shelved in favour of a subsequent chargee

Court orders

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  1. 1.Bank of Africa Kenya Limited enjoined in the suit as an interested party
  2. 2.Prayer to set aside/vacate the Judgment of 3rd March 2017 dismissed with costs to the Respondents
  3. 3.The charge and further charge over LR No. 26693/14 Kikuyu (I.R 104873) to be discharged to enable the Decree Holders to pursue their respective portions
  4. 4.Vesting order issued vesting upon the Decree Holders only the portions they are occupying
  5. 5.The Judgement Debtor to sign transfer documents in favour of the Decree Holders, and in default the Deputy Registrar to execute the same on his behalf
  6. 6.Moses Mukundi Chege enjoined as a plaintiff (allowed 24th September 2019 in terms of prayer (1) only)
  7. 7.Prayer by Moses Mukundi Chege to be allowed to file pleadings declined, with no order as to costs

Authorities

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Cases cited (1)

  • Moses Kariuki Wachira Vs Joseph Muriithi Kanyita & 3 others
    (2016) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court), suit transferred from the High Court

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, "Benard Mulongo Mwanja (Suing on his behalf and on behalf of 19 others) v Charles Mbugua Ngugi; Bank of Africa Kenya Ltd (Proposed Interested Party) [2020] KEELC 2520 (KLR)", Case Analysis (2020). ELC No. 854 of 2014 (formerly HCCC No. 408 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2520/eng@2020-05-05

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