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Case Brief · caselaw.co.ke
High CourtDismissedNot stated in the judgment (application filed 24/1/2013, contemporaneous with a suit in which the applicant is plaintiff)

Walter Achieng Nondi v Standard Chartered Bank Kenya Limited & Damaris Aknyi Nondi

High Court of Kenya
29 January 2015
2,156 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If property was registered in someone else's name before death, you cannot claim it through an estate grant.

What this practically means

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Executive summary

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Walter Achieng Nondi, son and administrator of the late Walter Arthur Nondi, filed a Notice of Motion on 24/1/2013 under Order 40 rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3, 3A and 63(c) and (e) of the Civil Procedure Act, seeking a temporary injunction restraining Standard Chartered Bank Kenya Limited (1st respondent/chargee) and Damaris Aknyi Nondi (2nd respondent, his sister and registered owner) from selling Kisumu Municipality Block 5/76 pending hearing of his suit. He alleged the estate of his late father was never distributed and that the 2nd respondent irregularly registered herself as owner and charged the land to the bank. The bank admitted advancing monies but denied knowledge of competing interests and deponed that the property was already sold. The 2nd respondent did not respond. Kaniaru J dismissed the application with costs on 29/1/2015. The applicant's own green card showed the 2nd respondent became registered owner on 29/2/2000, before the father's death on 10/9/2002, contradicting the plaint's averment of a 2007 transfer; the land was therefore never a deceased's asset and could not be covered by any grant. The court found no prima facie case, no irreparable loss (damages would suffice against a sound financial institution), and the balance of convenience favouring the innocent chargee. The uncontroverted averment that the property was already sold rendered the injunction futile. The judge also questioned, obiter, whether the suit would be caught by the Limitation of Actions Act.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

No prima facie case established: the applicant is not the registered owner, the green card shows the 2nd respondent became owner on 29/2/2000 while the father was alive, and the grant cannot cover the land

Reasoning

The applicant's own green card annexture showed the 2nd respondent was registered as owner on 29/2/2000, before the father's death on 10/9/2002. The plaint's averment of a 2007 transfer was found to be false. Since the land was never a deceased's asset, the grant ad litem could not confer any interest entitling the applicant to an injunction.

p. 3
02

Irreparable loss

Holding

No irreparable loss: the property's value is knowable and the 1st respondent is a sound financial institution able to pay damages

Reasoning

The court found the value of the suit property known or knowable and the 1st respondent a flourishing financial institution with a sound capital base, so adequate damages would suffice if the suit ultimately succeeded. The applicant failed to demonstrate loss not compensable by damages.

p. 3
03

Balance of convenience

Holding

Balance of convenience favours the 1st respondent, an innocent chargee facing escalating losses on default

Reasoning

The 1st respondent lent money in good faith to the registered owner without knowledge of competing claims; default continues and losses escalate. The applicant may pursue the 2nd respondent directly. The applicant's untruths in the plaint also weighed against equitable relief.

p. 4
04

Futility of injunction where property already sold

Holding

The uncontroverted averment that the property is already sold renders the injunction futile

Reasoning

The 1st respondent deponed that the suit property was already sold and the application overtaken by events. The applicant neither filed a further affidavit nor addressed the point in submissions, so the court accepted the averment and held that a restraining order would achieve nothing.

p. 3
05

Limitation of Actions Act

Holding

The court doubted, without deciding, whether the suit or any future recovery suit would be caught by the 12-year limitation period

Reasoning

The 2nd respondent became registered owner in 2000; a suit for recovery of land must be filed within 12 years of accrual of the cause of action. The judge raised this under the Limitation of Actions Act (Cap 22) as a concern about the viability of the suit, though no definitive ruling was made on it.

p. 3

Legal principles established

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  • Property that a deceased person did not own at the time of death cannot be covered by a grant of letters of administration issued later
  • Courts will not grant injunctions in vain where the property has already been sold and the averment is uncontroverted
  • An innocent chargee acting with due diligence on the register should not be restrained; the proper target of any claim is the fraudulent registered owner

Court orders

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  1. 1.The application is dismissed with costs
Jurisdiction invoked
Order 40 rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3, 3A and 63(c) and (e) of the Civil Procedure Act (Cap 21)

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, "Walter Achieng Nondi v Standard Chartered Bank Kenya Limited & Damaris Aknyi Nondi", Case Analysis (2015). Not stated in the judgment (application filed 24/1/2013, contemporaneous with a suit in which the applicant is plaintiff). Source: 

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