Kienge v Nyauntu & another (Environment & Land Case 55 of 2015) [2024] KEELC 1578 (KLR)
The bottom line
#A Kisii court cancelled a bank charge over a man's land after finding he never signed the loan security documents used against him.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved non-execution of the charge and Deed of Guarantee
The plaintiff proved to the required standard that he never executed the charge instrument nor the Deed of Guarantee
A criminal court had already convicted the 1st defendant for forging the title deposit letter by which the plaintiff's title was handed to the bank. The charge and guarantee instruments carried defects: undated attestation, uncountersigned alterations to name and ID number, Nairobi attestation stamps without explanation, and the attesting advocate was not called as a witness. The bank also failed to call a document examiner. These lapses, coupled with the forgery finding, proved the plaintiff's case on a balance of probabilities.
Validity of the registered charge
The charge registered against Bassi/Bogetaorio II/2834 is null and void and was cancelled
Since the plaintiff never executed the charge, the registration was procured through a forged document and without his consent. The court declared the charge null and void, cancelled it, and directed the Land Registrar to nullify the register entry without any discharge instrument, since a void charge requires no discharge.
The counterclaim for the outstanding loan debt
The counterclaim was dismissed; the plaintiff is not liable for the 1st defendant's debt
The bank's security over the suit land was void, so it could not recover the debt from the plaintiff or exercise statutory power of sale. The bank may only pursue the 1st defendant as principal debtor, and the court declined to make further orders on how the bank should pursue payment.
The two title deeds to the suit land
The Land Registrar was directed to determine the genuine title, destroy the forgery, endorse the nullification of the charge and return the genuine title to the plaintiff
Two title deeds, both bearing endorsements of the charge, were presented at trial. Only one title can exist at a time; one is a forgery. To prevent two titles circulating, the court directed the Deputy Registrar to release both to the Land Registrar, who must decipher the genuine one, destroy the other, and hand the original to the plaintiff.
Legal principles established
#- A chargee alleging proper execution of a charge and guarantee bears the evidential burden of proving the charge documents were duly executed and attested; the attesting advocate should ordinarily be called as a witness
- A chargee whose entitlement rests on an invalid charge cannot exercise statutory power of sale over the charged land
Court orders
#- 1.A declaration that the purported legal charge registered against the title Bassi/Bogetaorio II/2834 is null and void and the same is cancelled
- 2.The Land Registrar, Kisii, to cancel and nullify the entry of the charge in the register of the suit land without the need of an instrument of discharge of charge
- 3.A permanent injunction restraining the 2nd defendant from selling or in any other way dealing with the suit property
- 4.The counterclaim is dismissed with costs to the plaintiff; the plaintiff is not liable to pay the debt of the 1st defendant
- 5.Both title deeds to be released to the Land Registrar, Kisii, by the Deputy Registrar of the court
- 6.The Land Registrar to decipher which title deed is genuine, destroy the non-genuine one, make entry of nullification of the charge, and hand the original title to the plaintiff
- 7.Costs of the suit to be borne jointly and/or severally by the two defendants
- Jurisdiction invoked
- First-instance civil suit before the Environment and Land Court; article 162(2)(b) jurisdiction over land implied by the pleadings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kienge v Nyauntu & another (Environment & Land Case 55 of 2015) [2024] KEELC 1578 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1578/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.