REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT THIKA CIVIL APPEAL NO. 3 OF 2023 PETER KUNGU WANYOIKE..........................................APPELLANT VERSUS MICHAEL WANG’OMBE.......……...…………....…...… RESPONDENT RULING 1. The matter before the Court is the Notice of Attachment under Order 22 Rule 46 of the Civil Procedure Rules in respect of title deed LR. No. GATAMAIYU/KAMUCHEGE/1990 which was deposited as security by the Appellant for the due performance of the decree. 2. The said Appeal was heard and this Court (presided by F. Muchemi L.J Rtd.) delivered judgment on 3rd November 2025 in which it found that the Respondent had proved HC CIVIL APPEAL NO 3 OF 2023 PAGE 1
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his case on a balance of probabilities and upheld an award of general damages of Kshs. 500,000/- and Kshs. 161,525/- as special damages. 3. The Respondent having succeeded in the appeal is entitled to realize the security, title deed- LR. No. GATAMAIYU/KAMUCHEGE/1990 which was deposited into this Court as security for the due performance of the decree whose sum of the decretal is Kshs. 661,525/. 4. According to valuation report by Citadel Valuers dated 9 th November 2023 that was produced by the Appellant, the value of the subject land comprised in the said title deed far beyond the decretal amount. It approximately 8 times over and above the decretal amount as the land is valued at Kshs. 5,500,000/-. 5. The Land Act, 2012 makes provision for creation of informal charges under Section 79(6), (7) and (9) as follows: (6) An informal charge may be created where: a) A chargee accepts a written and witnessed undertaking from a chargor, the clear intention of HC CIVIL APPEAL NO 3 OF 2023 PAGE 2
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which is to charge the chargor’s land or interest in land, with the repayment of money or money’s worth obtained from the chargee plus interest as agreed by the chargor and the charge; b) The chargor deposits any of the following- i. A certificate of title to the land; ii. A document of lease of land; iii. Any other document which it is agreed as evidence ownership of land or a right to interest in land. (7) A chargee holding an informal charge may only take possession of or sell the land which is the subject of an informal charge, on obtaining an order of the court to that effect. (9) A chargor shall not possess or sell land whose title documents have been deposited by a chargee under an informal charge without an order of the court. 6. The deposit of GATAMAIYU/KAMUCHEGE/1990 the in title itself created deed an informal charge as against the Appellant deposited in favour of the Respondent as security for the due performance of the decree. HC CIVIL APPEAL NO 3 OF 2023 PAGE 3
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7. The issue of informal charge was elaborated by the Court in Tassia Coffee Estate Limited & Another vs Milele Ventures Limited [2013] eKLR as follows: Going by these provisions of the law, it would appear that the defendant/respondent having deposited his title deed for the suit property with the plaintiffs/applicants, it created an informal charge in favour of the plaintiffs/applicants over the suit property as security for the payment of the balance of the purchase price for those other parcels of land. The plaintiffs/applicants therefore became chargees of an informal charge over the suit property and enjoy a lien by deposit of documents. 8. Further Section 79(7) of the Land Act specifically requires a chargee to an informal charge can only realize it with the leave of the court. To reiterate, it states thus: “A chargee holding an informal charge may only take possession of or sell the land which is the subject of an HC CIVIL APPEAL NO 3 OF 2023 PAGE 4
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informal charge, on obtaining an order of the court to that effect.” 9. The rationale behind this requirement was elaborated by the Court in HFC Limited vs Njora (Environment & Land Case No. E027 of 2023 [2024] KEELC (KLR) as follows: Whereas the Land Act of 2012 does not set forth specific considerations that the court should make in determining whether or not to grant or deny leave to sell the land, my reading of the law is that a chargee holding charge, whether formal or informal must satisfy some fundamental conditions. These include:a) The chargee must prove that the chargor is indebted to the chargee and has defaulted in payment of the debt thereof; b) The chargee has given a redemption notice to the chargor; and HC CIVIL APPEAL NO 3 OF 2023 PAGE 5
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c) The chargor has failed to comply with the notice. This court insists that the foregoing set conditions must be met conjunctively. Of great importance before exercise of the right of sale is the equity of redemption. Section 89 of the Land Act provides for the equity redemption of grants redemption. the chargor The a equity of reasonable opportunity to redeem the property by repaying the principal amount and interest as agreed by the parties before it is disposed off by the chargee. 10. Applying the same reasoning, that the deposit of title deed in Court as security for the performance of the decree creates an informal charge that now gives the Respondent a lien over the documents so deposited, it means two things, one, that the title deed to the property cannot now be released to the Appellant. Further, they may not be released to the Respondent forthwith or sale may not be ordered straight away as consideration in HC CIVIL APPEAL NO 3 OF 2023 PAGE 6
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regard to right of redemption also ought to be extended to the Appellant before such sale can be effected. Indeed, this is more so because even the value of the land far exceeds what the Appellant is required to pay as the decretal amount. 11. Consequently, this Court directs as follows: i) This Court reiterates that the Notice of attachment under Order 22 Rule 46 of the Civil procedure Rules was duly served and as confirmed by the Affidavit of Service dated 9/6/2026 hence the title deed GATAMAIYU/KAMUCHEGE/1990 shall continue to be held by this Court until further orders. ii) The Respondent is within 14 days from the date hereof, granted leave to file and physically serve, a Formal Application seeking this Honourable Court’s leave to sell the land comprised in title deed GATAMAIYU/KAMUCHEGE/1990 in satisfaction of the decretal sum of Kshs. 661,525/ together with costs and interests. iii) The Appellant shall, within 30 days from the date of service of the said Application, file and serve any responses including any proposal to exercise the equity of redemption by payment of outstanding decretal sum, interests and costs. HC CIVIL APPEAL NO 3 OF 2023 PAGE 7
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iv) Upon filing of formal Application, the matter shall be fixed for hearing by this Court to determine whether or not leave to sell the said land comprised in title deed GATAMAIYU/KAMUCHEGE/1990 should be granted. v) This Ruling shall be served together with the Formal Application that the Respondent shall file seeking leave to sell the land. vi) Costs of this Application shall abide the outcome of the formal Application. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 30TH DAY OF JULY, 2026. …………………………………………. L N MUGAMBI JUDGE HC CIVIL APPEAL NO 3 OF 2023 PAGE 8
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