Bakamoyo Limited v Registrar of Titles & 4 others; Nyundo & 7 others (Interested Parties) (Environment & Land Case 156 of 2015) [2024] KEELC 4064 (KLR)
The bottom line
#A Kenyan court confirmed you can sue the liquidator of a collapsed bank to recover documents like land titles, without breaking liquidation protections.
What this practically means
#Executive summary
#Key legal issues
#Whether leave of the court is required and could be granted for proceedings against the Kenya Deposit Insurance Corporation as liquidator of Imperial Bank (K) Ltd
Leave was granted; the court held it had jurisdiction over the dispute concerning land in the custody of the bank in liquidation and allowed the Chamber Summons.
The court analysed sections 43, 53, 55 and 56 of the Kenya Deposit Insurance Act, noting that the Central Bank appoints the Corporation as receiver and liquidator, that section 55(2) permits an aggrieved party to apply to court and grants jurisdiction, and that section 56(2) prohibits proceedings against an institution in liquidation without court sanction. As the original title was held by the bank in liquidation and the dispute concerned land, the court granted leave.
Whether the law firm of Messrs. Awuor & Company is duly on record to act for the Petitioner
The Notice of Motion of 21st June 2023 was allowed; the court held Awuor & Company duly on record.
The court held that the right to counsel is constitutional and that a party may be represented by as many advocates as it wishes, subject to the taxing master's discretion on costs. Relying on the test in Supasave Retail Limited v Coward Chance, real mischief and prejudice must be shown before interfering. Order 9 rule 5 on change of advocates did not apply because the Applicant did not change advocates but appointed another firm to act alongside. No prejudice was shown.
Costs of the two applications
Costs awarded to the Petitioner/Applicant but held in the cause.
Relying on section 27 of the Civil Procedure Act and the authorities of Mulla, Kuloba and Morgan Air Cargo Limited v Everest Enterprises Limited, the court held that costs follow the event but remain discretionary. As the main matter was still ongoing, the costs of both applications were awarded to the Applicant but ordered to be in the cause.
Legal principles established
#- The Kenya Deposit Insurance Act expressly permits a party aggrieved with the exercise of the liquidation powers to apply to the court, granting jurisdiction to the court hearing the matter.
- A party has a right to choose an Advocate of its own choice, and the right to legal representation should not be unnecessarily hindered.
- Costs follow the event unless the court, for good reasons, orders otherwise, and the award of costs is at the discretion of the court.
Court orders
#- 1.That the Chamber Summons application dated January 26, 2023 by the Petitioner/Applicant be and is hereby found to have merit and is allowed in its entirety
- 2.That the Notice of Motion application dated 21st June, 2023 by the Petitioner/Applicant be and is hereby allowed in its entirety
- 3.That leave be and is hereby granted to the Petitioner/Applicant to seek for orders against the Kenya Deposit Insurance Corporation as Appointed Liquidator of Imperial Bank (k) Ltd (In Liquidation)
- 4.That the Honourable Court be and is hereby pleased to issue an order compelling the Kenya Deposit Insurance Corporation as Appointed Liquidator of Imperial Bank (K) Ltd (in liquidation) to produce to the court the original title of the Property identified as L.R 28/IV/Mainland North/C.R 5097 on costs of Kenya Shillings twenty Thousand (Kshs. 20, 000.00/=) for logistical expenses to be met by the Petitioner
- 5.That the court be pleased to make certified copies of the original title of the Property identified as L.R 28/IV/Mainland North/C.R 5097 and a copy of the same be furnished to the Petitioner/Applicant for purposes of producing it during hearing
- 6.That this Honourable Court be and is hereby pleased to find that the law firm of Messrs. Awuor & Company is duly on record to act for the Petitioner in this matter
- 7.That for expediency sake, the matter to be mentioned on 15th May, 2024 for the Pre-Trial Conference directions and hearing 12th September, 2024
- 8.That costs to be awarded to the Petitioner/Applicant for both the Chamber Summons application dated 26th January, 2023 and the Notice of Motion Application dated 21st June, 2023 in the cause
- Jurisdiction invoked
- Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 2011; section 55(2) and section 56(2) of the Kenya Deposit Insurance Act, No. 12 of 2012; sections 68 and 69 of the Evidence Act cap. 80
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakamoyo Limited v Registrar of Titles & 4 others; Nyundo & 7 others (Interested Parties) (Environment & Land Case 156 of 2015) [2024] KEELC 4064 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4064/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.