https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5048

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC CASE NO. E001 OF 2023** **JENNIFER NKUENE RIRIA.........................................PLAINTIFF** **=VERSUS=** **JEDIEL MWIREBUA MUTHURI................................DEFENDANT** **AFRICAN BANKING CORPORATION LIMITED............OBJECTOR** **RULING** 1. In February 2016, **Jediel Mwirebua Muthuri** [***the judgment- debtor***] sold to **Jennifer Nkuene Riria** [***the decree-holder***] land parcel number **Nyaki/Milathankari/276**, measuring approximately 0.56 hectares, at Kshs 12,000,000. The decree- holder paid the above purchase price in full and the land was transferred to the decree-holder on 26/8/2016. The sale was subsequently annulled by the High Court in **Meru High Court Succession Cause No 3 of 1985**. The succession cause related to the estate of the late **David M’Mwirebua Barethi alias Mwirebua Mbarathi**. 2. Subsequent to that, the decree-holder brought this suit against the judgement-debtor, seeking a sum of Kshs 30,000,000 being the current market value of the land. Vide a judgment dated 20/2/2025, this Court [Yano J] awarded the decree-holder the above sum together with costs of the suit and interest. 3. The judgment-debtor did not satisfy the decree and the certificate of costs. Consequently, vide an application for execution dated 6/10/2025, the decree-holder moved to attach land parcel number **Ntima/Igoki/4249**, registered in the name of the judgment-debtor. In addition, the decree-holder brought a notice of motion dated 7/10/2025, seeking an order prohibiting the judgment-debtor against dealing with land parcel number **Ntima/Igoki/4249**, pending the sale of the said land to satisfy the decree in this suit. The said application is one of the two items that fall for determination in this ruling. 4. The attachment of **Ntima/Igoki/4249** in execution of the decree in this suit attracted a notice of objection by **African Banking Corporation Ltd**, objecting to the attachment. In response to the notice of objection, the decree-holder intimated her intention to proceed with the attachment. In tandem with the requirements of **Order 53** of the **Civil Procedure Rules**, the objector brought a notice of motion dated 4/11/2025, inviting the court to lift the attachment. The said application by the objector is the second item that falls for determination in this ruling. I will first dispose the objector’s application dated 4/11/2025 because if it succeeds it will effectively dispose the decree-holder’s application dated 7/10/2025. **Objector’s Application dated 4/11/2025** 1. The objector’s notice of motion dated 4/11/2025 was premised on the grounds outlined in the motion and in the supporting affidavit sworn by **Faith Nteere** on 4/11/2025 and her further affidavit sworn on 20/11/2025. It was canvassed through written submissions dated 11/12/2021, filed by ***M/s Kiautha Arithi & Co Advocates***. The case of the objector is that the title to the attached land is held by the objector as security for a financial facility of Kshs 29,000,000 extended to the judgment-debtor in 2014 and a further facility of Kshs 3,600,000 extended to the judgment-debtor in 2022. 2. The objector states that the facility of Kshs 29,000,000 was secured by a charge registered against title number **Ntima/Igoki/4249** on 28/8/2014 while the further facility of Kshs 3,600,000 was secured by a further charge registered against the same title on 28/1/2022. 3. The objector further states that besides charging to them title number **Ntima/Igoki/4249**, the judgment-debtor also charged to them title number **Ntima/Igoki/4248** as a collateral for financial facilities extended to him. They add that in addition to creating the above legal charges, the above sum of Kshs 32,600,000 was secured by a Deed of Assignment of all Rental Income from title number **Ntima/Igoki/4249**. The said Deed was registered in the Registry of Collaterals on 20/4/2022. The Deed of Assignment subsists until the debt is repaid/recovered in full. 4. It is the case of the objector that the judgment-debtor approached them and requested to be allowed to amalgamate title number Ntima/Igoki/4248 and title number Ntima/Igoki/4249 and have them brought under the regime of the Sectional Proprieties Act to enable him sell some of the units so as to repay the loan and still be left with some sectional titles. Upon receiving necessary professional advice, the objector acceded to the request and appointed ***M/s Kiautha Arithi & Co Advocates*** and ***M/s Geoland Surveys Limited*** to undertake the following exercises: 5. ***Amalgamate title number Ntima/Igoki.4248 and 4249.*** 6. ***Subdivide and register the amalgamated titles into sectional titles under the Sectional Properties Act, 2020*** 7. ***Reinstate the objector’s charges on all the resultant sectional titles.*** 8. The objector adds that conversion of the titles to the Sectional Property Regime required that all the subsisting charges against the title be discharged to facilitate the conversion. It is their case that the terms of the conversion exercise were set out in the letter of amendment to the letter of offer dated 23/7/2024 which was duly executed by the judgment-debtor, which provided that the objector would release the titles solely for the purpose of change of common boundary, issuance of sectional titles relating to Ntima/Igoki/4249 and creation of fresh legal charges over Ntima/Igoki/4248 and over the sectional titles created out of Ntima/Igoki/4249. 9. The objector emphasizes that the objective of them acceding to the request for conversion of the title was to facilitate the judgment-debtor to sell some of the sectional titles independent of each other to help him repay the ballooning loan that was in serious arrears and still be left with some sectional properties. 10. It is the case of the objector that as at 4/11/2025, the judgment-debtor owed them Kshs 53,852,669.97 being the principal sum and interest, which is secured by the title that has been attached. For the above reasons, title number **Ntima/Igoki/4249** is a collateral held by them and is not available for attachment or interference by the decree-holder or any other third party. They urge the court to lift the attachment. 11. The judgment-debtor supported the case of the objector through a replying affidavit dated 1/12/2025. He confirmed the factual circumstances under which the titles were discharged, pointing out that it was for the purpose of converting the titles to the sectional property regime. ­ 1. The judgment-debtor stated that he was committed to settling the decree together with the awarded costs and interest, adding that he had obtained the consent of his family members to use part of his share out of their late father’s estate to settle the decree. 2. The decree-holder opposed the application through a replying affidavit dated 11/11/2025 and written submissions dated 19/11/2025, filed by ***M/s Mwirigi Kaburu & Co Advocates***. The case of the decree-holder is that the court rendered a judgment in this case on 20/2/2025 and awarded her Kshs 30,000,000 plus costs of the suit and interest. The costs were taxed on 28/9/2025. To date, the judgment-debtor has not settled the award. She adds that there is no order of stay of execution in force. 3. The decree-holder contends that prior to attaching land parcel number Ntima/Igoki/4249, she obtained an official search which showed that the land was registered in the name of the judgment-debtor and was unencumbered. The decree-holder argues that the objector has not established any legal or equitable interest over the land. 4. Citing **Order 22 rule 48** of the **Civil Procedure Rules**, the decree-holder argues that there is nothing in the Civil Procedure Rules that prevents attachment and sale of charged property in execution of a court decree. 5. The court has considered the objector’s application dated 4/11/2025 and the responses to the application. The court has also considered the parties’ submissions. The key issue to be determined in this ruling is whether title number Ntima/Igoki/4249 is available for attachment and auction in execution of the decree in this suit. I will be brief in my analysis and disposal of the issue. 6. What emerges from the evidence in this application is that the attached land (parcel number Ntima/Igoki/4249) was charged to the objector in 2014 to secure a loan of Kshs 29,000,000. A further charge was created against the same title in 2022 to secure an additional sum of Kshs 3,600,000. It does emerge from the uncontroverted evidence placed before this court that in 2022, the judgement-debtor approached the objector and requested to be allowed to convert title number Ntima/Igoki/4249 to **The Sectional Property Act** to facilitate generation of sectional titles to the various units/apartments that are on the land. The purpose of the conversion was to enable the debtor to dispose some of the units to settle the outstanding loan that was secured by title number Ntima/Igoki/4249. The objector acceded to the request on the understanding that the property would remain a collateral during the conversion period and until the loan is repaid in full. 7. It does also emerge from the evidence presented by the objector that they released the charged title to their advocates and surveyors for the sole purpose of conversion of the title to the Sectional Properties Act regime. It is clear that the discharges of charges which were effected were in furtherance of the title conversion exercise. The discharges were not a culmination of a loan repayment by the debtor. The discharges were not redemptions by the judgment debtor. 8. Consequently, from the evidence on record, title number Ntima/Igoki/4249 remained a collateral held by the objector. Although facilitative discharges were effected against title number Ntima/Igoki/4249 by the objector’s advocates, the discharges were part and parcel of the title conversion exercise and did not change the property’s status as an undischarged collateral. For the above reasons, the court finds that title number Ntima/Igoki/4249 is not available for attachment and auction in execution of the decree in this suit. That is the finding of the court on the key issue in the application under consideration. 9. On costs, the author of the present state of affairs is the judgment-debtor/defendant. Had he settled the decree, this application would not be necessary. Consequently, the judgment-debtor/defendant will bear costs of the application. **Decree-holder’s Application’s dated 7/10/2025** 1. In light of the finding of the court on the objector’s application, it follows that the decree-holder’s application dated 7/10/2025 fails. For the same reason as above, the judgment-debtor/defendant will bear costs of the application. **Disposal Orders** 1. Consequently, the plaintiff’s/decree-holder’s application dated 7/10/2025 and the objector’s application dated 4/11/2025 are disposed as follows: 2. ***The plaintiff’s/decree-holder’s application dated 7/10/2025 is declined on the ground that Ntima/Igoki/4249 is held as a collateral and no proper provision has been made for the outstanding debt.*** 3. ***The objector’s application dated 4/11/2025 is allowed in terms of prayer 3.*** 4. ***The defendant (judgment-debtor) shall bear costs of the two applications***. **DATED, SIGNED AND DELIVERED AT MERU THIS 21ST DAY OF JULY, 2026.** **B M EBOSO [MR]** **ELC JUDGE**