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ELCDismissedCMCC No. E035 of 2021· [2024] KEELC 6219 (KLR)

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)

High Court of Kenya
26 September 2024
3,345 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal from the Chief Magistrate's Court at Murang'a (CMCC No. E035 of 2021), decided by L. Gacheru J on 26th September 2024. The suit below concerned a caution registered on 13th May 1985 by the 3rd Respondent over land parcel LOC.17/Iganjo/1015, registered in the name of the late David Solomon Kamau Mwenje. The 1st Respondents, legal administrators of the estate, sought removal of the caution. The trial court directed the Appellant bank and the 3rd Respondent to execute withdrawal forms and awarded costs to the 1st Respondents, having found that Walker Kontos Advocates (pointed out by the Appellant) failed to respond for about ten years and that no reasons were given for maintaining the caution. On appeal, the Appellant argued it was not the cautioner, had not taken over the deceased's account, and that Walker Kontos acted for the 3rd Respondent. The Court agreed the trial court misread the Appellant's letter of 17th May 2013, but held that the Appellant, having assumed the 3rd Respondent's assets and liabilities in 2001, was not a stranger to the transactions, and adduced no proof that the deceased's account was excluded; banker-customer confidentiality did not bar disclosure. Invoking Section 73(1) of the Land Registration Act and Section 133(1) of the repealed Registered Land Act, the Court ordered the caution removed forthwith, allowed prayer (b) of the Plaint, and dismissed the appeal entirely with costs to the 1st Respondents, including costs at the trial.

Key legal issues

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01

Whether the appeal against the order for removal of the caution was merited

Holding

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

Reasoning

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.

p. 7
02

Whether the Court has power to order removal of the caution

Holding

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

Reasoning

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.

p. 7
03

Burden of proving that the deceased's account was not taken over

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Prayer no (b) of the 1st Respondents' Plaint dated 2nd June 2021 allowed
  3. 3.The Appeal is dismissed entirely with costs to the 1st Respondents, including the costs at the trial Court

Authorities

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Legislation

  • Registered Land Act (repealed)Section 133(1)
  • Land Registration Act 2012Section 73(1), (2), (3) and (4)
  • Evidence ActSection 107
  • Civil Procedure ActSection 78

Cases cited (10)

  • Selle vs Associated Motor Boat Co
    [1968] EA 123
  • Abdul Hameed Saif vs Ali Mohamed Sholan
    (1955) 22 E.A.C.A. 270
  • Mwangi Rukwaro & Another v Land Registrar Nyeri
    [2019] eKLR
  • Maria Nganga Gwako v Charles Mwenzi Nganga
    Civil Appeal No. 287 of 2012 (2014) eKLR
  • Magdalene Wambui Mbugua Muhia & 2 Others v Charles King Kigwe & 3 others
    [2019]
  • Gitobu Imanyara & 2 Others vs AG
    (2016) eKLR
  • Abok James Odera t/a A.J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates
    (2013) eKLR
  • Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa)
    (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR)
  • Santosh Hazari vs Purushottam Tiwari (Deceased) by L.Rs
    {2001} 3 SCC 179
  • Peters v Sunday Post Limited
    {1958} E.A. page 254
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.