Citi Bank N.A. Kenya v Eric Kamau Mwenje & Maureen Waithera Mwenje (Suing as the Legal Administrators of the Estate of David Solomon) & 2 others (Environment and Land Appeal 006 of 2023) [2024] KEELC 6219 (KLR)
The bottom line
#Kenya's High Court dismissed National Bank of Kenya's appeal, confirming that a bank taking over another bank's assets inherits its disputes, and ordered the removal of a decades-old land caution.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal against the order for removal of the caution was merited
The appeal failed; the Court found the trial court misread the Appellant's letter but reached the right outcome, and the Appellant, having assumed the 3rd Respondent's assets and liabilities, was not a stranger to the caution
The Court found the trial court misread the letter of 17th May 2013 as making Walker Kontos the Appellant's advocates when they acted for the 3rd Respondent. However, the Appellant admitted assuming assets and liabilities of the 3rd Respondent and adduced no evidence that the deceased's account was excluded from the takeover. Banker-customer confidentiality did not bar disclosure. The Court therefore exercised its statutory power to order removal of the caution directly and dismissed the appeal.
Whether the Court has power to order removal of the caution
Yes, under Section 73(1) of the Land Registration Act 2012 as read with Section 133(1) of the Registered Land Act (repealed), the Court may order removal where no reasonable cause for maintaining the caution is shown
Both parties accepted that a caution may be withdrawn by the cautioner or removed by order of the court or registrar. Since the cautioner (3rd Respondent) never defended the suit or the appeal and no party claimed an interest in maintaining the caution, the Court invoked its powers under the Land Registration Act and the repealed Registered Land Act to order the caution removed forthwith, also allowing the alternative prayer (b) of the Plaint.
Burden of proving that the deceased's account was not taken over
The Appellant, which alleged it did not take over the deceased's account, bore the burden of proving that fact and failed to discharge it
Applying Section 107 of the Evidence Act, the Court held that he who alleges must prove. The Appellant asserted it did not take over the deceased's account but placed no evidence before the trial court or the appellate court demonstrating exclusion of that account from the takeover of assets and liabilities. Its reliance on banker-customer confidentiality was rejected as no offence would be caused by disclosing whether the account was part of the takeover.
Legal principles established
#- A bank which assumes the assets and liabilities of another bank cannot claim to be a stranger to transactions involving the latter, and confidentiality does not bar disclosure of whether an account was taken over
- A first appellate court must re-evaluate and re-assess the evidence and reach its own conclusions
Court orders
#- 1.The caution lodged on the suit property Loc.17/Iganjo/1015 on 13th May 1985 by the 3rd Respondent be and is hereby removed forthwith
- 2.Prayer no (b) of the 1st Respondents' Plaint dated 2nd June 2021 allowed
- 3.The Appeal is dismissed entirely with costs to the 1st Respondents, including the costs at the trial Court
- On appeal from
- Chief Magistrate's Court at Murang'a
- CMCC No. E035 of 2021
- Jurisdiction invoked
- Appellate jurisdiction of the High Court over appeals from subordinate courts (Section 78 of the Civil Procedure Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Citi Bank N.A. Kenya v Eric Kamau Mwenje & Maureen Waithera Mwenje (Suing as the Legal Administrators of the Estate of David Solomon) & 2 others (Environment and Land Appeal 006 of 2023) [2024] KEELC 6219 (KLR)", Case Analysis (2024). CMCC No. E035 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6219/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.