Daniel Kabiru Ndungu & another v Molyn Credit Limited & 3 others
The bottom line
#A Kenyan court refused to reopen a land-loan judgment and allowed the lender to sell the property, because the borrowers never raised their interest argument at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether review of the September 23, 2021 judgment lay on grounds of apparent error and discovery of new evidence
Review refused. The in duplum rule was never pleaded, raised in evidence or submitted on; the alleged error is a matter of law appealable, not reviewable, and the prior determination is not 'new evidence'.
Order 45 rule 1 grounds require an error self-evident on the face of the record or discovery of matter not available with due diligence. The in duplum issue appeared nowhere in the pleadings or submissions at trial; the amount awarded was pleaded in the counterclaim. This court has concurrent jurisdiction with the judge whose finding is questioned and cannot re-evaluate his judgment.
Whether the 1st defendant may exercise statutory power of sale over the suit property pursuant to an informal charge
Granted. The deposit of the title as security for the loan created an informal charge under section 79(6) of the Land Act, and section 79(9) requires court leave for sale, which the court granted.
The judge in the main judgment had allowed the 1st defendant to hold the suit title on the same terms on which it was deposited by the 1st plaintiff, terms which created an informal charge. Statutory notices complained of were not supported by citation of any law; the filing of the application itself constituted notice to pay or face sale.
Legal principles established
#- A review error must be self-evident and not require elaborate argument; failure to consider a legal principle that was never pleaded cannot found review.
- A chargor under an informal charge may not possess or sell land whose title documents are deposited without an order of the court (section 79(9) Land Act).
- An application for leave to sell under section 79(9) and execution of the decree under Order 22 produce the same outcome.
Court orders
#- 1.The 1st defendant's originating summons dated June 27, 2022 is allowed as presented
- 2.The plaintiffs' notice of motion dated July 20, 2022 seeking review is dismissed for want of merit
- 3.Costs of the plaintiffs' application awarded to the 1st defendant
- Jurisdiction invoked
- Order 45 rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction) and section 79(9) of the Land Act (leave for a chargor under an informal charge to possess or sell land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Kabiru Ndungu & another v Molyn Credit Limited & 3 others", Case Analysis (2023). Environment & Land Case 658 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16338/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.