Republic v Assets Recovery Agency & 2 others Ex parte Applicant Family Bank Limited; Chosen Builders Investment Limited (Interested Party) [2022] KEELC 1281 (KLR)
The bottom line
#A Kenyan court dismissed Family Bank's challenge to a land restriction, confirming that only a chargeholder with a subsisting charge is entitled to a hearing before a restriction is registered.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte applicant was entitled to be heard before registration of the restriction
Not entitled, because its charge had been discharged on 5/9/2018 and no encumbrance subsisted when the restriction was registered on 15/4/2019
The certified register showed the charge registered on 30/4/2015 as entry 1 was discharged on 5/9/2018 as entry 2. The claim of a 'conditional discharge' failed since no such concept exists in the Land Act or Land Registration Act; the applicant's subsequent caution of 12/3/2019 showed no valid charge existed. Without a subsisting charge, the applicant was not a chargee entitled to a hearing under Article 47 or Section 4(3) of the Fair Administrative Action Act.
Whether the restriction violated Section 76 of the Land Registration Act
No violation; the Land Registrar properly exercised discretion under Section 76(1) to place the restriction to prevent fraud or improper dealing at the request of the Assets Recovery Agency
Section 76(1) permits the Registrar, for prevention of fraud or improper dealing or other sufficient cause, to restrict dealings. The Assets Recovery Agency's letter of 15/4/2019 requesting the restriction in aid of fraud and money laundering investigations was exhibited. The Registrar therefore acted within the statutory framework and could not be faulted.
Whether failure to obtain a court restraint order under Section 68 POCAMLA rendered the restriction unlawful
No; Section 68 POCAMLA is complementary to Section 76(1) of the Land Registration Act and the Agency may proceed by way of a registrar's restriction where urgency requires
The court interpreted Section 68 POCAMLA as supplemental to the Land Registration Act regime. Where the exigencies of a case do not permit prompt procurement of a court order, the Agency may properly move the Land Registrar to preserve property under Section 76(1). Failure to seek a restraint order was therefore not fatal.
Legal principles established
#- Section 68 POCAMLA restraint orders are complementary to Section 76(1) Land Registration Act restrictions; where urgency demands, the Asset Recovery Agency may move the Land Registrar directly to preserve property
- The law does not envisage a 'conditional discharge' of a charge; a discharge of charge extinguishes the encumbrance with effect from registration
- Only a person with a subsisting registered charge is entitled to a hearing before registration of a restriction on the parcel register
Court orders
#- 1.The notice of motion dated 12/9/2019 is dismissed for lack of merit
- 2.No award of costs - each party to bear own costs in view of the public interest elements of the dispute
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/Environment and Land Court under the Fair Administrative Action Act and Order 53 of the Civil Procedure Rules over the notice of motion dated 12/9/2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Assets Recovery Agency & 2 others Ex parte Applicant Family Bank Limited; Chosen Builders Investment Limited (Interested Party) [2022] KEELC 1281 (KLR)", Case Analysis (2022). Thika ELC JR 4 of 2021 (formerly Kiambu HCJR 13 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1281/eng@2022-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.