Cooperative Bank of Kenya v Gituma (Environment and Land Appeal E021 of 2024) [2025] KEELC 6297 (KLR)
The bottom line
#Kenya's Environment and Land Court upheld a Kshs.17 million award against a bank for registering a charge over land without a valid loan, consent, or documentation.
What this practically means
#Executive summary
#Key legal issues
#Legality and validity of the charge over the suit property
The registration and continuation of the charge was illegal and fraudulent: no consideration moved, no authority from the respondent to obtain the title from KWFT, no charge instrument produced, and no valid spousal consent
The appellant's own amended defence conceded the facility was cancelled and no monies disbursed, so the charge lacked consideration. DW1 admitted there was no agreement authorising the bank to obtain the title from KWFT and that the charge instrument was never produced. Spousal consent purportedly embedded in the letter of offer was irregular. The charge was therefore registered contrary to law and in a casual, cavalier manner.
Whether the respondent suffered loss and damage
Yes - the respondent, as registered proprietor, was deprived of his proprietary rights including the right to use the land as collateral, and was subjected to mental anguish by the threatened auction
Under sections 24 and 25 of the Land Registration Act, the registered owner enjoys absolute rights. The illegal charge deprived him of these rights, including use of the land as security. DW1 admitted auctioneers were instructed to sell the property, evidencing mental anguish. Failure to compensate would breach Article 40(3) of the Constitution.
Whether the award of general damages ought to be disturbed
No - the assessment of Kshs.12,000,000 and Kshs.5,000,000 was reasonable and well informed; the appellant proposed no alternative figure and showed no error of principle
The jurisdiction to interfere with quantum is circumscribed per Butt v Khan and Gitobu Imanyara. Having reviewed the trial judgment and considered Allan George Njogu Residence Ltd and Alton Homes Ltd, the court found the assessment reasonable. The appellant also failed to suggest what would be commensurate compensation.
Legal principles established
#- A charge registered without corresponding consideration must fall
- A first appellate court may depart from trial court findings only where they were reached absent evidence, on misapprehension, are perverse, or on an error of principle
- Failure to tender the charge instrument justifies an inference that no duly executed and attested charge instrument existed
- Spousal consent to a charge must be in the prescribed form, duly executed and attested, and cannot be embedded in a letter of offer
- An appellate court may interfere with quantum of damages only if the award is inordinately low or high so as to represent an error of principle
Court orders
#- 1.The Appeal be and is hereby dismissed
- 2.The Judgment of the Learned trial magistrate [Hon. J. M Njoroge – CM] and the consequential decree be and are hereby affirmed
- 3.Costs of the appeal be and are hereby awarded to the Respondent
- 4.The Costs in terms of clause [III] shall be agreed upon; and in default be taxed by the Deputy Registrar
- On appeal from
- Subordinate court (Chief Magistrate's Court, per Hon. J.M Njoroge - CM)
- Not stated
- Jurisdiction invoked
- First appeal under section 78 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cooperative Bank of Kenya v Gituma (Environment and Land Appeal E021 of 2024) [2025] KEELC 6297 (KLR)", Case Analysis (2025). Not stated in judgment (memorandum of appeal dated 18th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6297/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.