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ELCPartially AllowedNot stated in judgment (plaint dated 29th September, 2022, amended 5th November 2024)· [2025] KEELC 4775 (KLR)

Parekh & another (Suing as the Personal Representatives of the Estate of Harshadrai Manilal Parekh) v Access Bank (Kenya) Plc & another (Environment and Land Case E324 of 2022) [2025] KEELC 4775 (KLR)

Environment and Land Court
19 June 2025
AOA. Omollo
3,463 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Nairobi court ordered a bank to return a land title and a caveat cancelled, but awarded only Kshs 100,000 in damages because the family delayed too long.

What this practically means

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Executive summary

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The plaintiffs, executors of the estate of H. M. Parekh, sued Trans-National Bank Limited (1st defendant) and the Chief Land Registrar (2nd defendant) over a caveat registered in 1996 on title L.R No. 1870/1/394, Nairobi, held by the deceased as security for an overdraft to Global Travel Ltd. They sought a declaration that the caveat was null and void, mandatory injunctions to remove the caveat and release the original title, an order cancelling the register entry, general damages of Kshs 10,000,000 and special damages of Kshs 150,000,000. The 1st defendant did not enter appearance; the 2nd defendant (the Registrar) defended, denying receipt of any registrable instrument or proper removal application. The court heard two plaintiff witnesses, including a valuer, and the Registrar's officer. Framing three issues, Omollo J held that the guarantee underpinning the caveat was defeated in HCCC 91 of 2005 by limitation, not declared illegal, so the caveat could only be challenged from the judgment of 4th June 2021; the plaintiffs, having been parties to that suit without raising the caveat's illegality, were barred by res judicata from claiming damages flowing from the caveat. Their failure to present the earlier judgment or removal application for registration, and lack of diligence, disentitled them to substantial damages under the clean hands doctrine. Judgment was entered releasing the original title to the plaintiffs, directing the Chief Land Registrar to cancel the caveat with or without production of the original title, awarding nominal general damages of Kshs 100,000 with interest for the 1st defendant's inaction, with each party bearing their own costs.

Key legal issues

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01

Validity and removal of the caveat registered over L.R No. 1870/1/394

Holding

The claim to remove the caveat could only run from the judgment of 4th June 2021 in HCCC 91 of 2005, not earlier, since the guarantee was held statute-barred, not illegal, and judgment was entered against the 1st defendant. Removal orders already existed and the registrar was directed to cancel the caveat without presentation of the original title.

Reasoning

The court found the guarantee in the earlier suit was defeated by limitation rather than declared illegal, and the 1st defendant was still held liable for the debt. Therefore the caveat was not shown to be fraudulent or void from inception. Having failed to execute the earlier judgment or lodge removal application per procedure, the plaintiffs nonetheless retained an existing removal order, and the registrar was directed to implement it without the original title.

p. 6
02

Entitlement to general and special damages

Holding

Only nominal general damages of Kshs 100,000 awarded against the 1st Defendant for its inaction after being served; the Kshs 150,000,000 special damages claim failed as res judicata and for want of diligence.

Reasoning

The deceased knew of the 1996 caveat and never challenged it; the plaintiffs could have pleaded the caveat's illegality in HCCC 91 of 2005 where they were parties. No evidence of steps to extend the lease or repay the debt was adduced, and the registrar was never properly presented with the removal application or court order. Equity therefore denied substantial damages.

p. 7
03

Effect of undefended claim against the 1st Defendant

Holding

Although the claim against the 1st Defendant was undefended, the court had to satisfy itself that a case was proved before granting orders, particularly damages.

Reasoning

The court noted formal proof still requires proof of the claim, framing its own issues and scrutinising the evidence rather than granting the reliefs sought as a matter of course. It found the release of the title and cancellation of the caveat justified, but damages only to the nominal extent of the 1st Defendant's inaction after service of pleadings.

p. 4

Legal principles established

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  • Where a party was party to prior litigation in which it could have litigated the legality of a caveat, a subsequent claim based on the same is res judicata.
  • General damages is an equitable remedy available only to a diligent party who comes to equity with clean hands.
  • A judgment or order is registered with the land registry only upon presentation; service alone is insufficient.

Court orders

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  1. 1.An order directed at the 1st defendant to forthwith release the original title No. 1870/1/394; I.R No. 36722 to the Plaintiffs
  2. 2.An order directed at the Chief Land Registrar to cancel the caveat number I.R. 36722/2 in the register of Land Title No. 1870/1/394 I.R 36722/1 with or without presentation of the original title
  3. 3.General damages of Kshs 100,000 payable by the 1st Defendant to the Plaintiffs with interest at court rates from the date of the judgment until payment in full
  4. 4.Each party to bear their costs

Authorities

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Legislation

  • Registration of Titles Act (repealed), Cap 281Section 57; Section 57(6); Section 26(1)
  • Land Registration Act 2012Section 73(1)
  • Constitution of Kenya 2010Article 40

Cases cited (3)

  • Sammy Nganga Ngatiri SS vs George Ngatiri Mbugua & 2 Others
    (2021) eKLR
  • Mary Njeri Kariuki and 7 Others versus Mary Mugure
    (2022) eKLR
  • HCCC No. 91 of 2005 (Trans-National Bank Ltd v Global Travel Ltd & Others, Odero J.)
Jurisdiction invoked
Original civil jurisdiction (first-instance suit by plaint; no constitutional/statutory basis invoked in the judgment)

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, "Parekh & another (Suing as the Personal Representatives of the Estate of Harshadrai Manilal Parekh) v Access Bank (Kenya) Plc & another (Environment and Land Case E324 of 2022) [2025] KEELC 4775 (KLR)", Case Analysis (2025). Not stated in judgment (plaint dated 29th September, 2022, amended 5th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4775/eng@2025-06-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.