Republic v Director of Surveys & 2 others; Equity Bank (K) Limited (Subject); Thea & 2 others (Interested Parties) (Judicial Review 14 of 2019) [2024] KEELC 5597 (KLR)
The bottom line
#The High Court dismissed Equity Bank's challenge to land record changes, holding the bank failed to do proper due diligence before accepting the property as loan security.
What this practically means
#Executive summary
#Key legal issues
#Whether the decision of the County Surveyor (Kiambu) altering the R.I.M. in respect of the suit property was amenable to quashing on grounds of illegality, irrationality or procedural impropriety
No. The boundary change was effected on 20th December 2010, more than two years before the charge, following the consented appearance of the affected proprietors before the Land Registrar, and was therefore not calculated to defeat the Applicant's interest.
The court applied the Pastoli thresholds of illegality, irrationality and procedural impropriety. On the evidence, the R.I.M. amendment was a change of common boundary effected in 2010 pursuant to mutation forms attested by the Land Registrar, not an amalgamation, and predating the Applicant's charge of 2012. The decision could thus not have targeted the Applicant's chargee interest, and the judicial review threshold was not met.
Whether the Applicant's failure to conduct due diligence prior to registering the charge affected its entitlement to the prerogative orders
Yes. Had the Applicant conducted proper due diligence, it would have discovered that the charged title had been replaced by new title number L.R. T6255.
Borrowing from authorities on purchaser due diligence, the court held a chargee occupies an analogous position. The 1st Interested Party was found guilty of non-disclosure of the material fact that the charged title had ceased to exist, but the facts would have come to light upon proper due diligence at the Director of Survey's office. The Applicant's own failure defeated its claim to the prerogative orders.
Legal principles established
#- To succeed in judicial review, an applicant must show the decision complained of is tainted with illegality, irrationality or procedural impropriety
- Judicial review is concerned with the decision-making process, not the merits of the decision
- A chargee is in an analogous position to a purchaser of land with respect to the responsibility to carry out due diligence before executing the charge
- A party must prove its case even where interested parties do not enter appearance
Court orders
#- 1.The Further Amended Notice of Motion dated 30th November, 2022 is dismissed entirely
- 2.Costs to the Respondents
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act, Order 53 Rule 3(1) of the Civil Procedure Rules and Sections 7(1), (2) and 8 of the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director of Surveys & 2 others; Equity Bank (K) Limited (Subject); Thea & 2 others (Interested Parties) (Judicial Review 14 of 2019) [2024] KEELC 5597 (KLR)", Case Analysis (2024). Judicial Review Application (Further Amended Notice of Motion dated 30th November, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5597/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.