[2022] KEELC 1536 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT THIKA

ELC NO. 222 of 2018 (OS)

DAYKIO PLANTATIONS LIMITED ......................APPLICANT

VS

NATIONAL BANK OF KENYA LIMITED...1ST RESPONDENT

ALFRED MABALI KILONZO.......................2ND RESPONDENT

JOSEPH NJOROGE NDUNGU .....................3RD RESPONDENT

JUDGMENT

1. The application is filed under section 85 and 102 of the Land Act, Order 37 Rule 1 of the Civil Procedure Rules and all the enabling provisions of the law.

2. The Applicant sought the singular order that the property known as Land Reference Number 13673/19 (IR 43940) (suit land) be discharged from the encumbrance registered in favour of the 1st Respondent.

3. The application is supported by the grounds annexed thereto and the affidavit of Sheila Kahaki Muya sworn on the 30/7/2017. The deponent stated that the Applicant is the beneficial owner of the suit land. That the suit land is registered in the name of the 2nd Respondent. That the property was charged to the 1st Respondent on various dates as shown on the copy of the certificate of title marked DPL1. She averred that the 1st Respondent has no records of the charges and as such bit is not entitled to claim any interest in the property. That despite constant reminders and requests from the 2nd Respondent, the 1st Respondent has declined to discharge the property notwithstanding that the loans have been fully repaid.

4. Further she deponed that the Applicant sold the suit land to the 3rd Respondent via an agreement dated the 9/4/2009 and the 2nd Respondent is desirous of transferring the land to the 3rd Respondent.

5. The 1st Respondent opposed the application vide its Replying Affidavit sworn by Daniel Gichuru on the 19/7/2021. He stated that he is the head of Securities and Documentation at the bank and that the 1st Respondent is a stranger to the 2nd Respondent as the bank does not have in its custody any details about the said 2nd Respondent and that there is a need to look through its archived records. That the 2nd Respondent has not availed any documentation to show that he indeed was the bank’s customer save for the copy of the title which indicates that there was a charge registered in favour of the 1st Respondent way back on the 19/11/1992. He blamed the 2nd Respondent for failing to produce documents in support of the borrowing nor any statement of accounts evidencing repayment of the loan.

6. The 1st Respondent questioned the basis of the beneficial interest of the Applicant. Lastly the bank stated that due to the age of the transaction, it has not been able to trace and or retrieve the title documents from its registry.

7. On the 12/10/2021 the Applicant and the 1st Respondent agreed to canvass the application by way of written submissions. At the time of writing the Judgment none of the parties had filed written submissions. I shall therefore be guided by the pleadings on record.

8. I have perused the record and I find no evidence of service of summons upon the 2nd and 3rd Respondents. However, the 3rd Respondent entered appearance through the firm of Abdirazak & Company Advocates on the 23/8/2018 but failed to file a defence.

9. The 2nd Respondent did not oppose the application.

10. The key issue for determination is whether the Applicant is deserving of the orders with respect to the discharge of the suit land.

11. The Applicant sought orders to have the title to the suit land discharged by the 1st Respondent. The 1st Respondent in turn challenged the basis of this prayer by the Applicant on grounds that it does not own the suit land.

12. I have perused the record and more specifically the title of the suit land dated the 25/3/1988 issued in the name of the 2nd Respondent. Entry No 2 indicates that there is a charge dated 6/9/1988 in favour of the 1st Respondent. A further charge in favour of the 1st Respondent was registered on the 19/11/98 and a second further charge to the said bank was registered on the 17/10/1995.

13. Section 85 of the Land Act requires the bank, to upon payment of all the monies secured by the charge and the performance of all other conditions and obligations of the charge, be entitled to discharge the charge at any time before the charged land has been sold by the chargee or a receiver under the power of sale.

14. I concur with the 1st Respondent that the right party to seek a discharge in view of the contents of paragraph 12, is the 2nd Respondent, the registered owner of the land. In the absence of any evidence to the contrary, the orders being sought by the Applicant cannot be founded. It is noteworthy that the registered owner of the land was not served with the summons in this case. No explanation has been tendered by the Applicant.

15. In the circumstances it is the finding of the Court that the application is misplaced and I hereby dismissed it with costs to the Respondents.

16. Orders accordingly.

DELIVERED, DATED AND SIGNED AT THIKA THIS DAY OF 9TH DAY OF FEBRUARY, 2022.

J. G. KEMEI

JUDGE

Delivered online in the presence of;

Jimmi Maina holding brief for Derek Juma for Applicant

Ms. Kosgei for the 1st Respondent

2nd Respondent – absent

3rd Respondent – absent

Ms. Phyllis – Court Assistant