Ririani v Adan & another; Diamond Trust Bank Limited (Plaintiff to the Counterclaim); Ririani & 4 others (Defendant to the Counterclaim) (Environment & Land Case 189 of 2019) [2025] KEELC 1441 (KLR)
The bottom line
#A Nairobi buyer lost her claim to a house because she never got the existing bank's written consent before purchasing charged land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff is a bona fide purchaser of the suit property.
- 2.Whether the 2nd Defendant lawfully created a charge over the suit property.
- 3.Whether the 2nd Defendant's Counterclaim is merited.
Key legal issues
#Whether the Plaintiff was a bona fide purchaser for value
Not established; she failed to prove the alleged cash payments and her purchase was made without the chargee's consent, so she acquired no rights over the already-charged property.
The Plaintiff proved the contract with the registered proprietor and the initial payments through the bank, but the alleged cash payment of Kshs. 8.3 million was unsupported by documents or independent testimony. She admitted awareness of the Co-operative Bank charge and admitted she never obtained the chargee's written consent, which Sections 87 and 88(1)(g) of the Land Act and Section 59 of the Land Registration Act require. The sale agreement was therefore unenforceable and she obtained no registrable interest.
Whether a constructive trust arose in the Plaintiff's favour
No constructive trust could subsist because the chargee gave no undertaking to discharge the property and the Plaintiff reversed her payment to the bank.
Although the Plaintiff relied on Shah v Mombasa Bricks & Tiles and Twalib Hatayan on constructive trusts arising where a purchaser pays the purchase price and takes possession, the court found equity could not assist her: she had reversed the payment made to Co-operative Bank, the chargee never undertook to discharge the property, and she never obtained the requisite consent. The claim for specific performance was found without merit.
Whether the 2nd Defendant's charge was lawfully created
Yes; the takeover of the Co-operative Bank charge was lawful and procedural, and the Plaintiff adduced no cogent evidence of fraud.
The 2nd Defendant produced the letter of offer, undertaking, release of the original title with an executed discharge by Co-operative Bank, the charge dated 17th June 2016 registered on 19th September 2016, guarantees and the RTGS certificate. The Plaintiff, bearing the burden of proving fraud, produced no cogent evidence. The charge taking over the Co-operative Bank interest was validly and legally created.
Whether the court could grant the counterclaim's monetary and power-of-sale reliefs
No; those determinations require an accounting exercise outside the ELC's jurisdiction.
Following Co-operative Bank of Kenya v Patrick Kangethe Njuguna, disputes on statutory notices and tabulation of amounts owing under a charge fall within the High Court's civil jurisdiction, not the ELC's jurisdiction limited to land use disputes under Article 162 and Section 13 of the ELC Act. Determining the arrears and interest would require reviewing accounts and statutory notices, which the court cannot do.
Legal principles established
#- A chargor cannot sell charged land without the written consent of the chargee, and no transfer shall be registered until that consent is produced; a sale made without such consent is unenforceable.
- The Environment and Land Court lacks jurisdiction to determine accounting questions concerning charges, statutory notices and tabulation of sums owing; those fall within the High Court's jurisdiction.
- He who alleges fraud must prove it; the party alleging invalidity of a registered charge bears the onus of adducing cogent evidence.
Court orders
#- 1.Plaintiff's suit dismissed.
- 2.A declaration that the Legal Charge dated 17th June 2016 and registered on 19th September 2016 over the property known as Land Reference Number 2019/8294/119 Nairobi is valid, legal and enforceable as against the Chargor.
- 3.The 1st Defendant to bear the costs of the suit and the counterclaim.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162 of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#Plaintiff's declaration of ownership, cancellation of the charge, injunctions and orders compelling transfer and discharge
Sale agreement unenforceable for want of the chargee's written consent; no constructive trust arose; charge validly created
2nd Defendant's prayer to exercise statutory power of sale and alternative monetary claims (Kshs. 24,400,485.35 and Kshs. 194,655.44 with interest)
Court lacks jurisdiction over accounting questions and review of statutory notices; those fall within the High Court's jurisdiction
2nd Defendant's claim for general damages for fraud
No particular harms pleaded or proved
Plaintiff's claim as against the 1st Defendant
No relief or damages sought against the 1st Defendant despite his fraudulent conduct
Costs
The 1st Defendant shall bear the costs of this suit and the counterclaim; the Plaintiff, being a victim of the 1st Defendant's fraud, was not condemned to pay costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Sale Agreement between the 1st Defendant and the Plaintiff is therefore unenforceable for want of consent by the chargee.
a constructive trust cannot subsist over the suit property in the Plaintiff's favor. The Plaintiff's prayer for specific performance is found to be without merit.
this court is satisfied that the 2nd Defendant's charge, which took over the interest held by the Co-operative Bank of Kenya was validly and legally created.
This court does not have the jurisdiction to determine these issues as raised by the 2nd Defendant in the Counterclaim.
a. A declaration be and is hereby issued that the Legal Charge dated 17th June 2016 and registered on 19th September 2016 over the property known as Land Reference Number 2019/8294/119 Nairobi is valid, legal and enforceable as against the Chargor.
b. The 1st Defendant shall bear the costs of this suit and the counter claim.
Issues in the judgment
#Paragraph numbering is duplicated and out of sequence in the analysis and disposition (several paragraphs numbered 113, 114 and a stray 76).
The judgment inconsistently records the Plaintiff's role in the counterclaim, at times referring to the 1st Defendant's claim for general damages as 'The 1st Defendant has also sought for general damages' where the counterclaimant is the 2nd Defendant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ririani v Adan & another; Diamond Trust Bank Limited (Plaintiff to the Counterclaim); Ririani & 4 others (Defendant to the Counterclaim) (Environment & Land Case 189 of 2019) [2025] KEELC 1441 (KLR)", Case Analysis (2025). Not stated in the judgment (Plaint dated 6th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1441/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.