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ELCAllowedJudicial Review Miscellaneous Application dated 27th November, 2019 (following Judicial Review proceedings before Hon. Justice P. M. Njoroge)· [2020] KEELC 3810 (KLR)

Kcb Bank Kenya Limited v Collector of Stamp Duty & 2 others [2020] KEELC 3810 (KLR)

High Court of Kenya
4 February 2020
PNP. M. Njoroge
1,837 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was an application dated 27th November 2019 by Kenya Commercial Bank Limited, the ex-parte applicant in earlier judicial review proceedings before the High Court at Chuka, seeking to vary orders issued on 3rd April 2017 by Hon. Justice P. M. Njoroge. The original orders had compelled the Collector of Stamp Duty to issue an exemption notice, the Chuka Land Control Board to grant consent out of time, and the Chuka Land Registrar to effect transfer of title number Karingani/Ndagani/610 from National and Grindlays Bank to the applicant. Implementation stalled because, under the Land Registration Act, a legal right in property can only be transferred by the proprietor, and National and Grindlays Bank had ceased to exist by operation of law under the National & Grindlays Bank (Appointment) Act (Cap 488D). The applicant, through the affidavit of Patrick Gunyali Mbagaya, sought an enlarged mandamus requiring the Collector of Stamp Duty to issue an exemption notice under section 11 of that Act, and an order that the Deputy Registrar execute all necessary transfer documents on behalf of the defunct bank, invoking the court's supervisory jurisdiction under Article 165(7) of the Constitution. The respondents were properly served but did not attend court and offered no explanation. The court, finding it in the interest of justice to facilitate completion of the transaction, allowed the application, issued the mandamus on stamp duty exemption, directed the Deputy Registrar to execute the documents, and awarded costs to the applicant.

Key legal issues

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Whether the court could vary its earlier mandamus orders to facilitate completion of a transfer where the registered proprietor (National and Grindlays Bank) ceased to exist by operation of law

Holding

The court allowed the application, issuing an exemption mandamus against the Collector of Stamp Duty and directing the Deputy Registrar to execute the transfer documents on behalf of the defunct bank.

Reasoning

The ex-parte applicant had obtained mandamus orders on 3rd April 2017 compelling stamp duty exemption, land control consent and registration of the transfer of title number Karingani/Ndagani/610. Implementation stalled because under the Land Registration Act the legal right in property can only be transferred by the proprietor, and National and Grindlays Bank had ceased to exist by operation of law under the National & Grindlays Bank (Appointment) Act. The applicant invoked the court's supervisory jurisdiction under Article 165(7) to bridge the legal gap. Despite proper service, the respondents did not appear and offered no explanation. Considering the totality of the circumstances and the interest of justice in completing the transaction, the court granted the orders sought.

p. 4

Legal principles established

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  • Under the Land Registration Act, legal rights in property can only be transferred by the proprietor; where the registered proprietor has ceased to exist by operation of law, the court may direct its Deputy Registrar to execute the necessary transfer documents.

Court orders

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  1. 1.An order of mandamus issued compelling the Collector of Stamp Duty (1st Respondent) to issue an exemption Notice under Section 11 of the National & Grindlays Bank (Apportionment) Act (Cap 488D) Laws of Kenya exempting the applicant from paying Stamp Duty for the transfer of Title Number Karingani/Ndagani/610 from National and Grindlays Bank to the applicant
  2. 2.The Deputy Registrar of the court directed to execute all necessary documents on behalf of National and Grindlays Bank in relation to the transfer of the property title number Karingani/Ndagani/610 to Kenya Commercial Bank Limited
  3. 3.Costs awarded to the applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(7)
  • National & Grindlays Bank (Appointment) ActSection 11 (Cap 488D)
  • Stamp Duty ActCap 480
  • Land Control ActCap 302
  • Land Registration ActSections 6? / 14 cited (No. 3 of 2012)
Jurisdiction invoked
Article 165(7) of the Constitution of Kenya, 2010 (supervisory jurisdiction)

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, "Kcb Bank Kenya Limited v Collector of Stamp Duty & 2 others [2020] KEELC 3810 (KLR)", Case Analysis (2020). Judicial Review Miscellaneous Application dated 27th November, 2019 (following Judicial Review proceedings before Hon. Justice P. M. Njoroge). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3810/eng@2020-02-04

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