https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9935

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KITALE** **CIVIL CASE NO.E004 OF 2024** **EDNA CHERONO BORE…………………………………..PLAINTIFF** **VERSUS** **EQUITY BANK KENYA LIMITED………………………DEFENDANT** **JUDGMENT** 1. The plaintiff herein Edna Cherono Bore has brought this suit against Equity Bank, the defendant herein seeking the following reliefs; 2. ***A declaration that the assignment of the loan agreement and charge by Equatorial Commercial Bank Limited to Spire Bank or Equity Bank Kenya Limited is unilateral, illegal and does not bind the plaintiff at all.*** 3. ***A declaration that the defendant does not have the requisite statutory Power of Sale over the suit property.*** 4. ***A declaration that the action of the defendant to remedy the default of Pampa Churrascaria Limited through statutory Power of Sale without issuing the requisite statutory notices provided in Section 90 and 96 of Land Act, 2012 is null and void.*** 5. ***A declaration that the actions of the defendant to sell the suit property at a gross undervalue of Kshs.113,200,000/- is contrary to Section 97(3) of the Land Act 2012 and therefore void.*** 6. ***A declaration that the whole loan amount was disbursed at once without adhering to loan conditions which resulted in breach of the loan agreement that was relied on by the defendant to charge the suit property and hence the plaintiff is discharged from the guarantors obligations and subsequent charge forthwith.*** 7. ***A declaration that a notification of sale dated 28/2/2024 and the Newspaper advert dated 19/3/2024 issued by Agunja Traders Auctioneers is unlawful, null and void.*** 8. ***An order for permanent injunction restraining the defendant either by itself, its agents, servants, nominees, officers or otherwise from selling by public auction or by private treaty, alienating, dispensing or in any way dealing or interfering with the suit property.*** 9. ***A declaration do issue that the charge instrument registered against the suit property is hereby unconditionally discharged and the Land Registrar be ordered to cancel the entry on the title to suit property forthwith.*** 10. ***Costs of this suit.*** 11. ***Any other relief the hon court may deem fit.*** 12. **The plaintiff’s case.** The plaintiff avers that sometime in April 2014, Pampa Churrascaria Limited (the borrower/principal debtor) entered into an agreement for a loan of total of Kshs.60 million from Equatorial Commercial Bank Limited (E.C.B) payable in 60 months with an interest at 19% per annum, coverable monthly in arrears and in default at the rate of 2.71%. 1. She avers that she offered her property known as L.R no.2116/1050 (IR No.52527) measuring approximately 10.73acres situated at Kibomet area within Trans Nzoia County as security. 2. She claims that the said loan facility was equally secured by personal guarantors of the director/shareholders of the Pampa Churrascaria Limited namely Eduardo Debastianic and Mariam Abdul for Kshs.60,000,000/- each with a corporate guarantee by Pamba Grill Limited and Al Pasha Coffee Lounge & Bar Limited for Kshs.60,000,000/- each. 3. She states that Pamba Churrascaria Limited repaid the loan until August 2015 but thereafter defaulted and efforts to trace the directors have been futile. 4. She avers that in December 2014 Mwalimu National Sacco acquired majority stake in Equatorial Commercial Bank Limited (E.C.B) and changed its name to Spire Bank Limited in May 2016. 5. That the defendant subsequently acquired certain assets and liabilities effective from 31/1/2023 from Spire Bank but failed to notify the plaintiff and was therefore unaware of the changes. 6. The gist of the plaintiff’s case is that although her property was charged to Equatorial Commercial Bank (hereinafter to be referred to E.C.B for ease of reference) there was no proper assignment and/or transfer of the loan/chose inaction from E.C.B to Spire Bank and eventually to the defendant. 7. That by virtue of what she terms as breach of loan agreement and conditions set she is constructively discharged from her obligations as a guarantor. 8. She further avers that the loan agreement was substantively varied by disbursing the loan without the backup bill of quantities and other documents related to the loan conditions. 9. She avers that she is not indebted to the defendant and that the defendant’s exercise of statutory Power of Sale is not anchored on any debt or liability because according to her liability as a guarantor has not arisen. 10. She disputes the valuation of her property by Agunja Traders Association at forced value of Kshs.113,000,000/-. According to her the market value of her property is Kshs.1,150,000,000/- and faults the defendant for grossly undervaluing her property contrary to Section 97(3) of the Land Act, 2012. 11. She further faults Agunja Traders Auctioneers for advertising to sell her property on 12-4-2024 before the lapse of 45 redemption period contrary to Rule 15(d) of the Auctioneers Rules 1997. 12. She further avers that the principal borrower, Pamba Churrascaria Limited was placed under administration during the material time and that with moratorium in place the debt could not have possibly be assigned to the plaintiff and that the defendant could not on that basis exercise statutory Power of Sale. 13. In her testimony during trial, the plaintiff reiterated the above averments. She maintained that there was no proper assignment and/or transfer of the loan to E.C.B then to Spire Bank to the defendant. She insisted that she was not duly notified of the changes or assignment. She further faulted the defendant for exercising statutory Power of Sale when moratorium in respect to the principal debtor was in place. 14. She denied under cross-examination being aware of non-compliance with loan conditions by the borrower. She however conceded that she agreed to guarantee the loan facility by charging her property to secure the loan facility. 15. She stated that her grievance was that E.C.B did not assign the loan to the defendant and that there was no proper assignment. She denied knowledge of any assignment. 16. When pressed under cross-examination to give the date when the principal borrower was placed under administration, she stated that she did not have dates or evidence of liquidation. 17. She tendered the following exhibits to support her case namely; 18. ***Loan facility letter dated 4-4/-023 PExhibit 1*** 19. ***A charge dated 14-4-2024 PExhibit 2*** 20. ***A statement of Pamba Churrrascaria Limited PExhibit 3*** 21. ***A copy of sale advertisement dated 28/2/2025 PExhibit 4*** 22. ***A Newspaper advert PExhibit 5*** 23. In her written submissions dated 25-3-2026 done through learned counsel M/s Wandabwa Advocate, the plaintiff maintains that she is the owner of that charged property known as L.R No.2116/1050(IE 52527) and that she merely used the property to guarantee a loan facility for Pamba Churrascaria Limited (hereinafter to be referred to as Pamba for ease of reference). She contends that facility was equally secured by personal guarantees of the directors/shareholders of Pamba. 24. She contends that from the month of August 2015 Pamba began defaulting in its obligations to E.C.B and the facility fell into arrears. 25. She submits that by dint of assets and liabilities purchase agreement dated 12-9-2022 the defendant purported to acquire certain assets and liabilities from Spire Bank including the charge over her subject property. She disputes the assignment of the liability from Spire Bank to the defendant on grounds that there was no legal or lawful assignment of the legal charge over the subject property and that the defendant could not exercise Power of Sale on the said property. 26. She contests the notice issued by the defendant notifying the public including her about acquisition of Spire’s assets and liabilities. 27. She insists that the defendant did not acquire the legal charge over the suit property and there has been no legal or lawful assignment of the legal charge. 28. She faults the defendant’s list of documents stating that they do not show that there was proper assignment of her charged property to the defendant. 29. She submits that in the purchase agreement there is no substantive clause or material clause showing acquisition of her charged property. She contends that the agreement exhibited by the defendant should be construed against it. She relies on the following authorities; 30. ***Rift Valley Products Ltd –vs- Plexus Cotton Limited*** ***(No citation given)*** 1. ***Ruto & Another –vs- Yego (sued as legal representative of the Estate of Sally Cherotich & 4 Others (2023) KEELC 17755 (KLR).*** 2. ***Kenya Akiba Micro Finance Limited –vs- Ezekiel Chebii & 14 Others (2012)eKLR*** 3. ***Benard Mutiso –vs- Tabitha Mutiso (2022)eKLR*** 4. According to the plaintiff there was no consideration paid by the defendant to Spire Bank for the transfer of assets and liabilities. That the plaintiff’s property was not part of the assets in schedule of the contract. 5. She further contends that a charge being a proprietary interest in land cannot pass by implication or through general acquisition agreements. According to her such transfer can only occur if it is transferred and registered in the Lands Registry. She cites the provisions of Section 3(3) (a) (b) of Law of Contract which provides that no suit shall be brought upon a contract for disposition of an interest in land unless the contract upon which the suit is founded is in writing. 6. She further cites the provisions of Section 38(1) of the Land Act Cap 280 and Section 44(2) of the Land Registration Act 2012 to buttress her contention that the charges should have been first registered for it to change hands. 7. She submits that the defendant has not submitted evidence to prove that the assignment of her charged property to them was proper and legal. 8. She contends that the defendant’s argument that there was proper assignment on account of a publication of the same in the Kenya Gazette does not hold water because the gazette notice merely announced acquisition of certain assets and liabilities of Spire Bank by the defendant without specifics on what assets and liabilities were being acquired. 9. She submits that Section 9 of the Banking Act is the only legal regime governing amalgamation and/or transfer of assets and liabilities between banking institutions. 10. She further cites the provisions of Section 9(5) of the Banking Act which provide as follows; ***“Notice of the passing of the resolution confirming any amalgamation or arrangement, or any arrangement for the transfer of assets and liabilities, together with a copy of such resolution and the terms and conditions of the relevant agreement or arrangement, duly certified by the chairperson of the meeting at which such resolution was passed and by the secretary of the institution concerned shall be sent to the Central Bank by each of the institutions involved and after receipt of such notices from all the parties to the relevant agreement or arrangement, the Central Bank shall publish those notices.”*** She contends that the notices required by Central Bank of Kenya must of necessity include terms and conditions of agreements or acquisitions and that the Central Bank of Kenya would then publish the same. 1. She submits that the notices sent to Central Bank of Kenya by the defendant failed to include terms and conditions relevant to the purchase agreement/assignment including assets and liability being acquired by the defendant from Spire Bank. 2. She contends that the decisions cited by the defendant to support its assertions that gazette notice is sufficient evidence of assignment, are persuasive because they were made by courts exercising concurrent jurisdiction with this court and that the cases are distinguishable from her case because she is not the principal account holder. 3. She argues that the notice issued only specified that some assets and liabilities were being assigned and not all the assets. She contends that notices do not specify which asset/liabilities were being acquired. That such a notice in her view is not proof that defendant acquired the charge over the suit property. 4. She contends that the defendant bears the burden to prove on a prima facie basis that the charge on the suit property was assigned to it. 5. She further submits that the contract been the defendant and Spire Bank only binds the two adding that there is no privity of contract between the two contracting parties and her and relies on the case of **National Bank of Kenya Ltd –vs- Insurance Experts (K) Ltd (2022) KECA 141 (KLR)** where the court held inter alia that as a general rule a contract affects only parties to it and cannot be enforced against a person who is not a party. She submits that the defendant cannot rely on **“loan book’** to justify actions taken against her to recover the loan. 6. She contends that where assignment fails to specify the charge/mortgage being assigned, the assignee cannot acquire any interest in the charge. In that regard she relies on the Court of Appeal decision in the case of **Purbai Copal Ramji Patel –vs- Asset Recovery Services & Another (2016) KECA 832 (KLR)** where the court found that because the deed of assignment did not mention any charge or mortgage, the assignee could not exercise statutory power of sale. 7. She submits that the gazettement by Central Bank of Kenya of a notice alluding transfer of **“certain assets and liabilities”** cannot by dint of Section 9 of Banking Act constitute the assignment of the particular charge of her suit property. 8. She however concedes that the defendant made half-hearted attempts to prove the assignment by relying on clause 9 of the charge which stipulated that the charge would be binding notwithstanding any amalgamation or merger that maybe effected by Bank with any other company. 9. She however submits that the assignment did not comply with Section 9 of the Banking Act and that the Land Registrar did not register the assignment from Spire Bank to the defendant and that there is no document of assignment lodged with Registrar of Lands by Spire Bank indicating that it was assigning the charge to the defendant. 10. She submits that being a registered proprietor of the suit land and a person affected by assignment of the charge, she should have been notified of the impeding assignment of the charge and that by not informing her the defendant violated Sections 2 & 4 of Fair Administrative Actions Act. According to her, assignment was an administrative action. That she was not given a chance to be heard or given adequate notice of the administrative action. 11. She contends that the defendant’s action to exercise its Power of Sale is amenable to Judicial Review proceedings and Judicial Review remedies. She submits that the Constitution has widened the scope of remedies under Judicial Review and submits that the same are available even against private persons. She submits that the assignment of the charge on suit property from Spire Bank to the defendant is a transgression of her Constitutional rights to Fair Administrative Action. 12. According to the plaintiff there is no basis for the continued legal charge over the suit property capable of being assigned and contends that it should be discharged forthwith, she contends that the basis of her submissions are; 13. *The ECB disbursed loan facility without being furnished with Bills of quantities, proforma invoices and quotations, that she has locus to raise such concerns.* 14. *That the advancement of loan facility was premised on being furnished with the above grounds.* 15. *That because ECB disbursed the loan without requisite condition precedent she is discharges from her obligations as a guarantor.* 16. *She submits that she was not informed of the variations of loan agreement and that where there is a departure on the terms of agreement between the principal lender and debtor without her consent as a guarantor she cannot be liable and should be discharged from her obligation as a guarantor. She relies on the case of* ***Cooperative Bank of Kenya Ltd –vs- Washington Otieno Ogindo (2012) KECA 179 (KLR)*** *where the court found that the guarantor had guaranteed a sum of Kshs.150,000/- with interests thereon and that the extension of loan agreement that radically varied the terms without notice to guarantor could not be enforceable against him. She further on this score relies on the case of* ***David Harris –vs- Middle East Bank Kenya Ltd & 3 Others (2019) KECA 820 (KLR).*** 17. She submits that disbursement of loan without conditions precedent in her view amounted to material variation which obligated the principle lender to consult or notify her. 18. She contends that a statutory Power of Sale can only be exercised when there is a lawful charge. In her view the defendant did not lawfully acquire a charge upon which it could exercise power to sale. 19. On the question of whether her suit is time barred, the plaintiff contends that her suit against Spire Bank was filed between 2016 and 2020 and that the impugned assignment to the defendant had not occurred and argues that the impugned assignment is a new cause of action. 20. She contends that her previous suits were struck out and therefore in her view, the doctrine of res-judicata cannot in that regard apply. She relies on the case of **Andrew Omboto & 3 Others –vs- Board of Trustees National Social Security Fund & 6 Others (20220 eKLR.** 21. **The defendant’s case** The defendant denies the plaintiff’s claims and avers that it acquired some assets and liabilities from Spire Bank after obtaining ministerial approval on 24-1-2023 which was communicated by Central Bank of Kenya (CBK) to the public through a statement dated 30-1-2023. 1. The defendant through its witness Kariuki Kingori (DW1) tendered a copy of a press release by Central Bank of Kenya dated 30-1-2023 as **DExhibit 1.** 2. The defendant maintains that ECB merely changed its name to Spire Bank and it acquired the subject charge from Spire Bank. DW1 testified that the defendant issued a public notice following defendant’s completion of acquisition of certain assets and liabilities of Spire Bank. He tendered the Public Notice as **Dexhibit 2**. 3. He further tendered the following documents in defence; 4. *A public notice dated 1-2-2023 by Spire’s majority shareholder Mwalimu National Sacco* ***Dexhibit 3*** 5. *A copy of except from Assets and Liabilities Purchase Agreements dated 12-9-2022* ***Dexhibit 4****.* 6. *A copy of Loan Book account as at 9-4-2024* ***Dexhibit 5.*** 7. *A ruling delivered in Kitale HCC NO.8 of 2020 on* *8-2-2024* ***Dexhibit 6****.* 1. *A copy of the Ruling delivered on 28-7-2016 vide Kitale ELC No.59 of 2016* ***Dexhibit 2.*** 2. *A copy of Ruling delivered on 8/2/2018 vide Kitale HCC Misc. No.14 of 2017* ***Dexhibit 8****.* 3. *A copy of valuation report by Kenstead Valuers dated 27-2-2024.* 4. He denied the plaintiff’s contention that the details, of assets and liabilities acquired by the defendant from Spire Bank were not given. He stated that the details were captured in the Assets and Liabilities Purchase Agreement dated 12-9-2022 executed between the defendant and Spire Bank. 5. He stated that part of the assets acquired from Spire Bank included a Loan Book and the loan guaranteed by the plaintiff is listed in the Loan Book and that the notices issued by Spire Bank were pursuant to Clause 38 of the Charge. 6. He clarified that the Agreement exhibited as **Dexhibit 4** contained substantive clauses. That some clauses were omitted due to sensitivity and confidentiality of the document and that owing to Bank-Customer confidentiality the defendant had to exclude some documents in the Agreement exhibited. 7. He stated that the amount the defendant paid in consideration to Spire Bank is confidential and not relevant to the issues at hand. 8. He further stated that the agreement between Spire Bank and the defendant is not a subject of the dispute in this case. That the defendant took over loans from Spire Bank and that the transaction was regulated by Central Bank of Kenya. He insisted that the defendant was not obligated to get in touch with individual customers of Spire Bank. That Spire Bank had contracts with its individual customers and that the suit property was charged to Spire Bank and duly registered. That the defendant acquired rights over the charge with respect to plaintiff’s property and that the acquisition was legal and valid. 9. The defendant contends that its purchase of Spire Bank did not extinguish the subsisting charges. That the charges were existing at the time of the transaction and it was not new charge. Therefore there was no obligation to register a new charge. 10. He agreed that the transaction between Spire Bank and defendant over the suit property occurred when the suit HCC No.8/2020 was pending for judgment but that a public notice was issued informing all customers of Spire Bank that they were now customers of Equity Bank and that customers with liabilities with Spire Bank were notified that the liabilities were being taken over by the defendant. 11. In its written submissions dated 10-3-2026 done through learned counsel M/s Muriu Mungai & Co Advocates LLP Advocate the defendant gives a summary of dispute herein. That the plaintiff is the registered owner of the suit property and admits to charging the said property to secure a loan for Pamba from ECB. That the borrower defaulted and the plaintiff’s main grievance is the way assignment took place from Spire Bank to the defendant. That the plaintiff’s complaints that the loans were not advanced in terms of offer letter because Spire Bank did not receive Bills of Quantities among other documents from borrower prior to disbursing the loan. 12. The defendant submits that there was no assignment between ECB to Spire Bank because ECB merely changed its name to Spire Bank and that the transaction between Spire Bank and the defendant was proper and valid. It relies on **SPM (Kenya) Ltd v-s- Singh (202) KEHC 12172 (KLR).** 13. It submits that once assignment was published vide gazette No.660 the assignment became effective. In that regard it relies on the case of **Kibishi Hardware & Electrical Ltd & 2 Others –vs- Equity Bank (Kenya) Limited (2024) KEHC 15644 (KLR) and Zingo Investment Ltd –vs- National Bank of Kenya Ltd (2025) KECA 101 (KLR)** and **Jingo Tours & Safaris Limited & Another –vs- Auctioneers & Another (2025) KEHC 4020 (KLR).** It maintains that going by the above decisions there was no requirement to issue a specific notice to the plaintiff before it could transact with Spire Bank. 14. It further contends that in addition to Section 9 of the Banking Act, there was clause 33 in the Charge which expressly stated that if there is a transfer of business a charge would remain in force as if the new entity was the chargee. That there is no requirement that a new entity should give notice to charger for the assignment to become effective. 15. **Analysis and determination.** This court has set out both the plaintiff’s and defendant’s case. Before I delve into the issues for determination it may be helpful to take a look at the uncontested issues in this case. It is uncontested fact that Pamba Churrascaria Limited (the borrower) took a loan facility from ECB and the plaintiff offered herself as a guarantor to the loan advanced and towards that offered her property which is the suit property as security and charged it to ECB. 1. It is not also disputed that ECB changed its name to Spire Bank with Mwalimu National Sacco being its majority shareholder. 2. It is further undisputed that the borrower defaulted in payment and/or servicing the loan thus exposing the guarantor the plaintiff herein because of the security she had offered for the loan. The loan amount and the interests accrued is not an issue in this case. The total amount advanced and guaranteed is Kshs.60 million. 3. It is also not disputed that the defendant acquired some assets and liabilities from Spire Bank. What is in issue is the process in which the liability with respect to the charge relating to suit property changed hands or put it in perspective how the assignment of the charge took place. 4. The main issue in this case therefore is whether the assignment of the charge over the suit property was legal or lawful. The other issues are minor and incidental to the main issue and I will consider them alongside the main issue in the disposal of this case. 5. **Whether assignment of the charge on the suit property was lawful** The plaintiff’s position is that the defendant did not acquire legal charge over her suit property to entitle it exercise statutory power of sale. She challenges the legality of the assignment of the legal charge from Spire Bank to the defendant. The plaintiff has cited the provisions of Section 38(1) of the Land Act and Section 44(2) of the Land Registration Act 2012 to challenge the legality of the process of assignment. Section 38(1) of the Land Act no suit shall be brought upon a contract for dispensation of an interest in land unless the contract is in writing and signed by all the parties. The provisions of Section 44(2) of Land Registration Act provides that every instrument affecting disposition of land shall be in writing and executed by each of the parties consenting to it. 1. The plaintiff has faulted the exhibited purchase agreement **(Dexhibit 4)** stating that the same does not satisfy the legal requirements cited above and more specifically that the said agreement has not disclosed the material clause with respect to the impugned assignment. 2. The defendant is answer has relied on Agreement dated 12-9-2022 which it tendered as **Dexhibit 4**. That the agreement covers the assignment of the subject suit property and drew the court’s attention to what is referred in the agreements as **“Loan Book”.** The terms as used in the Agreement includes **“loans to customers’ and “all form of security (whether registered, contractual or derived by operation of law).”** 3. The defendant argued that the omission of specific loans and/or securities including that of the plaintiff was deliberate owing to bank-customer confidentiality rule and that specific pages were omitted in the Agreement for that reason. 4. This court finds that in terms of requirements under the provision of Section 38(1) of Land Act Cap 280 and Section 44(2) of Land Registration Act, 2012 the Agreement exhibited by the defendant as **Dexhibit 4** satisfies the cited legal requirements that a contract relating to disposition of interests in land must be in writing. The purchase agreement exhibited was signed by all the parties that is Spire Bank Limited, ECB Holding Limited and Mwalimu National Savings & Credit Cooperative Society Ltd. The contract was duly executed by all the parties concerned. The plaintiff having ceded her rights to ECB could only claim rights of redemption upon payment of guaranteed amount. She therefore cannot challenge the validity of the contract or its enforceability on account that she did not sign or consent to the said agreement (Dexhibit 4). 5. On the issue of confidentiality raised by the defendant with regard to omitting the particulars of specific chargors or liabilities it acquired in the purchase agreement, this court finds that a bank has a legal and ethical obligation as a financial institution to protect private financial and personal details of their clients from unauthorized access. Such information can only be disclosed with explicit consent of a customer by waiving the right to confidentiality. 6. This court finds that the purchase agreement (**Dexhibit 4)** covered the impugned assignment under “**Loan Book’** and I find no basis to accept the invitation by the plaintiff to construe the omission of specific clause or details in regard to the suit property against the defendant. This court finds the omission to be normal and ordinary in banking practices by financial institutions. 7. This court further finds that from the charge document signed between the ECB, the borrower (Pamba) and chargor (the plaintiff), the term **‘bank’** included any **‘successor’** or assigns of the bank. So when the defendant acquired the assets and liabilities from ECB, the assignment bound the charger and other customers of ECB. 8. It should not be lost that guarantorship is a serious financial commitment by the guarantor that he/she would step in to pay the loan facility guaranteed in the charge. This is aimed at enabling a borrower who would otherwise not be able to access a credit facility to access the facility. A charge created out of that commitment by a 3rd party (chargor) or guarantor is legally binding on the guarantor. Any default by the principal borrower triggers the guarantor’s contractual obligation to pay the lender or chargee. There are no two ways about it. The chargee advances its money on the strength of the said commitment and it would be unfair and/or make no financial sense for the guarantor to be allowed to escape such obligation without paying. If that was the case then commercial activities made possible by such arrangements would not be possible or feasible. 9. The plaintiff has pointed out that the loan was advanced without certain conditions or documents like bill of quantities being availed but this court finds the reasons not only lame for lack of proof but an excuse to avoid her obligation as a guarantor. 10. This court also finds the reasons by the plaintiff advanced that because the principal borrowers were under liquidation defendant is prevented from exercising its statutory power to be mere allegations without proof. In any event the very essence of guarantorship is to protect the interest of the charge/lender if the borrower defaults. The guarantor is contractually bound to step in when a borrower defaults for any reason. The plaintiff after committing to guaranteeing the loan facility and after borrower’s default in servicing the loan cannot turn around to say that her guarantorship cannot continue because the borrower went under or is facing financial difficulties. 11. The plaintiff as a guarantor of the subject loan upon which the suit property is charged can only be discharged from her obligation if she pays the outstanding amount in full. That is the only way to redeem or discharge the suit property under Section 85 of the Land Act. 12. On the question of privity of contract in respect to the impugned assignment of the charge to ECB to the defendant, this court finds that the charge instrument duly executed by the plaintiff contains the clause for ECB to assign or transfer the charge to another financial institution. The plaintiff cannot therefore validly claim that because she was not privy to purchase agreement between ECB, Spire Bank and the defendant. She should not be bound by the terms of the said agreement. The terms of the charge as observed above do not support her assertions. 13. This court further finds that the deed of assignment between the defendant and Spire Bank was approved by Central Bank of Kenya as per its press release exhibited by the defendant as **Dexhibit 1**. The approval refers to further approvals by Cabinet Secretary for National Treasury & Planning pursuant to Section 9 of the Banking Act. The legality of the subject assignment therefore cannot be impugned on grounds of legality. The defendant complied with the requirements of Section 9 of the Banking Act which provide as follows; ***“(1)No amalgamation or arrangement which involves an institution as one of the principal parties to the relevant transaction, and no arrangement for the transfer of all or any part of the assets and liabilities of an institution to another person, shall have legal force except with the prior written approval of the Cabinet Secretary.”*** The subject assignment disputed by the plaintiff therefore was lawful and binding. 1. Having found that the assignment of the subject charge with respect to suit property was lawful, the question whether the defendant could exercise its statutory right under Section 90 of Land Act, is obvious. The plaintiff has not denied that the borrower defaulted in repayment of loan and vanished without trace. The rights of the defendant as the charge of the suit property crystalized when default occurred and that is not in dispute in this case. 2. On whether the defendant’s action in exercising its statutory Power of Sale amounts to an administrative action amenable by Judicial Review proceedings, this court finds that the defendant has really overshot the known and well established boundaries and scope of Judicial Review. Judicial Review is a legal avenue that allows parties to challenge legality, regularity or propriety of decisions or actions by administrative bodies or public authorities. Private entities can only be challenged when executing public functions. The Constitution has expanded the scope of Judicial Review under Article 47 yes but it only relates to administrative actions not private actions such as the exercise of statutory Power of Sale. Such are governed by private law of contract and its attendant remedies. The plaintiff’s contention that the defendant’s action amounts to administrative actions and therefore amenable by Judicial Review proceedings is misconceived and misleading. 3. The long and short of this is that this court finds that the plaintiff has failed to prove her case against the defendant. The defendant has established to the required standard that it had every right to exercise its statutory Power of Sale over the suit property. The plaintiff’s suit against the defendant therefore fails on merit and is dismissed with costs to the defendant. **DELIVERED, DATED** and **SIGNED** at **KITALE** this **……8th …** day of **………………JULY……….……………., 2026.** **HON JUSTICE R.K. LIMO** **KITALE HIGH COURT** ***Judgment delivered in open court*** ***In the presence of*** ***Odero holding brief for Kongere for defendant*** ***Mercy Munyao holding brief for Wandabwa for plaintiff*** ***Duke/Chemosop – court assistants***