Nyanja Holdings Limited & Tripple Eight Invenstmenv (K) Limited v City Finance Bank Limited, Jamii Bora Bank Limited, City Finance Bank Limited, Nyanja Holdings Limited; Ndung'u Njoroge & Kwach Advocates (Third Party) [2022] KEHC 2426 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

HCCC NO. 1506/2000 & 993/2002 CONSOLIDATED

NYANJA HOLDINGS LIMITED..........................................................PLAINTIFF

VERSUS

CITY FINANCE BANK LIMITED...........................................1ST  DEFENDANT

CONSOLIDATED WITH 993 OF 2002

TRIPPLE EIGHT INVESTMENTS (K) LIMITED............................PLAINTIFF

VERSUS

JAMII BORA BANK LIMITED

CITY FINANCE BANK LIMITED.............................................1ST DEFENDANT

NYANJA HOLDINGS LIMITED...............................................2ND DEFENDANT

NDUNG’U NJOROGE & KWACH ADVOCATES ( 3RD PARTY)

J U D G ME N T

The Judgment in this matter relates to two files which were consolidated on 21/6/2007 by an order of Warsame Judge (as he then was)

These are:-

1) HCCC NO. 1506/2000

Nyanja Holdings Limited –v- City Finance Bank Limited

2) HCCC No.993 /2002

(i)   Tripple Eight Investments Kenya Limited-v- City Finance Bank Limited

(ii)   Nyanja Holdings Limited,

(iii)  Ndung’u Njoroge and Kwach Advocates (3rd Party)

HCCC NO. 993 OF 2002:

A Summary of the Pleadings:

In the first suit, that is HCCC 1506/2000 (to be referred to as the 1st suit) the plaintiff Nyanja Holdings filed the suit against the defendant City Finance Bank Limited seeking the following orders:-

1) A declaration that the sale of property that is to say all that piece of land known as LR NO.37/256/3 Nairobi by the purported private treaty of 24/3/2000, facade, a pretence and unlawful and is therefore a nullity and should be set aside.

2) An order that any action by the defendants subsequent to the said sale leading to the transfer of the property to the purported purchaser either the 2nd defendant or any other person on the basis of the private treaty be stopped and the property be reinstated to the plaintiff by ordering the Land Registrar to make a rectification of the register by cancelling the transfer effected thereof in favour of the 2nd defendant and anybody getting title from it.

3) General and exemplary damages including damages for trespass and loss of earnings from rental income and mesne profits.

4) Costs of this suit.

The Plaint is dated 24/8/2000.

1. The plaintiff Nyanja Holdings (As the 2nd defendant in the H.C.Civil Case No.993/2000) had also filed an amended defence and counter-claim on 28/10/2015 seeking  similar orders as those listed above.  The plaintiff prayed that the suit by the defendant i.e Tripple Eight Investment (K) Limited be dismissed with costs.

The 2nd suit Civil Suit No.993/2002 was commenced vide a plaint dated 12/8/2002 by Tripple Eight Investments (Kenya) Ltd against Jamii Bora Bank Limited, Njanja Holdings Limited, Ndung’u Njoroge & Kwach Advocates, 3rd Party.  The plaintiff was seeking the following orders:-

(a) That the 1st Defendant grants possession over the property known as Land Reference Number 37/256/3 to the plaintiff in terms of the sale agreement dated 24th March, 2000 whose terms and conditions the plaintiff has fully complied with leading to the transfer in favour of the plaintiff being registered at Lands office, Nairobi as Number L.R.12609/9

(b) That the 1st Defendant pays to the plaintiff’s rent for the period July, 2000 to June, 2002 in the sum of Kshs.13,455,01 as particularized at paragraph 8 herein together with rent from july, 2002 until payment in full or until the 1st defendant grants possession over the property to the Plaintiff (whichever shall be the earlier date) at the rate of Kshs.456,000. 00 per month.

(c) Interest on (a) at 20% per annum or such other rate as the honourable court may deem fit to grant from 1st July 2002, until payment in full.

(d) Interest on (b) for each month the rent shall remain unpaid at the rate of 20% per annum or such other rate as the court may deem fit to grant calculated with monthly rests and compound until payment in full or until vacant possession over the property is granted to the plaintiff (whichever shall be the earlier date).

(e)  A permanent injunction restraining the 2nd Defendant from trespassing on the property that is to say L.R. No.37/256/3 whether by itself, its servants, employees and/or agents

(f) Costs

(g) Any other and further relief as the Honourable court may deem fit to grant.

2. The Jamii Bora Bank Limited was sued as a defendant in the two suits.  In the 1st suit by Nyanja Holdings the claim was based on fraud in the exercise of the statutory power of sale.  The particulars of fraud are mainly that the sale of the property was discreet and by private treaty and contrary to an existing order of injunction in addition to selling the property at un under value.

3. As for the claim by the 2nd defendant, i.e Tripple Eight (K) Limited, it seeks specific performance of the sale agreement and in particular to grant vacant possession as well as a claim of loss of rental income.

4. In its defence dated 30/10/2000 Jamii Bora Bank Limited with respect to the plaintiff suit, it states that it rightfully and procedurally exercised its statutory power of sale and denies the allegation of fraud.  It is their defence that the property was sold at a price advised by a professional valuer and that no orders of status quo existed over the property at the time of sale.

5. As for the suit by Tripple Eight (K) Ltd the 1st defendant, Jamii Bora Bank Ltd admits that there was a sale agreement but denies that the plaintiff is entitled to any monies or interest.  That its obligation as a charge exercising statutory power sale ended once the sale was concluded and the transfer registered.  That given the plaintiff’s knowledge that the property was being sold in the exercise of statutory power of sale, and special conclusion stipulating that it had obligation to handover vacant possession must have been a mistake and therefore unenforceable.  it attributes the loss if any to the 2nd defendants refusal and or failure to vacate the suit property.

6. A 3rd party Ndung’u Njoroge and Kwach Advocates has jointed in the suit by Tripple Eight  Investiment (Kenya) Limited vide a 3rd party notice dated 2/9/2003 and filed in court on 23/10/2003  by Jamii Bora Bank Limited claiming indemnity against the claims by the plaintiff and 2nd defendant based on the ground that that there was an existing  injunction and/or status quo order restraining the sale of the suit property issued in the High Court Civil Case No.1965/1991.  It is the contention by the Jamii Bora Bank Limited that the 3rd Party gave it a professional advice that there was no injunction and/or status quo order restraining the sale of the suit property which informed its decision to proceed with the exercise of its statutory power of sale of the suit property.

7. The 3rd party filed a defence to this claim on 14/11/2003 and denied the claim by the bank.  The 3rd party admits that it was instructed by the bank to act for it in H.C.C.C 1965/1991 and admits giving factual information that the suit property herein was not subject of H.C.C.C 1965 of 1991 but denies advising the 1st defendant on the none existence of an injunction or status quo injunction or status quo order restraining sale of the suit property or advising it to proceed and sell the suit property.  The 3rd party further denies any negligence in giving advice and states that it was not involved in the sale of the suit property.

Background:

For the purpose of this Judgment and for ease of reference to the parties, Nyanja Holdings Limited will be referred to as the Plaintiff.  Jamii Bora Bank will be referred to as the 1st defendant.  Tripple Eight Investment (K) Limited will be referred to as the 2nd defendant Ndung’u Njoroge & Kwach Advocates shall be referred to as the 3rd Party.  The Land Parcel No. LR 37/256/3 will be referred to as the suit property.

Prior to institution of the suits herein, the property known as LR 37/256/3 was owned by Nyanja Holdings Limited. Nyanja Holdings Limited had a customer-banker relationship with City Finance Bank Limited (formerly Jamii Bora Bank). Nyanja Holdings seems to have had several customer-bank transactions in which they had different properties held by the bank, including the suit property herein. In the course of their customer-bank dealings, they failed to service one of their loans and the bank  purported to exercised statutory power of sale over the property in issue. The purchaser of the property was Triple Eight Investments Limited.

Nyanja Holdings protest that the sale was unlawful because statutory power of sale was not exercised as required as they did not receive any notice of sale, that the interest charged on the loan was exceeded wgat was allowed under the law and further to that, the land was sold at under value. They pray that the sale be cancelled and registration of the parcel to Triple Eight Investments be reversed.

On their part, Triple Eight Investments claim to be purchasers for value who engaged in a proper purchase. They seek to be given vacant possession of the suit property enjoyed by Nyanja Holdings Limited though Nyanja Holdings maintain that they do not physically have possession of the property.

City Finance Bank stands behind its decision to sell the property to Triple Eight Investments Limited citing failure by Nyanja Holdings to service their loan. They further allege that their lawyers advised them to sell the property.

The 3rd party was brought into the suit on allegation that it advised the bank to sell the property and should indemnify any losses as a result of professional negligence. The 3rd party takes the position that they were not involved in any dealings over the current suit property LR 37/256/3 and that they never gave any instructions to the bank to sell the property herein.

It is not denied that the property is located in the upmarket area of Karen and at the material time had 34 rental units which accrue income. During the pendency of this suit Warsame J, as the then was, ordered that the rental income fromt he said property to be deposited in a joint interest earning account held by the advocates for the parties herein.

Evidence:

The Plaintiff, Nyanja Holdings was the registered proprietor of Land Parcel No. LR37/256/3 Nairobi which he mortgaged to secure a loan or overdraft facility with the 1st defendant Jamii Bora Bank.  The plaintiff’s witness George Boniface Njau Mbugua, the director and executive chairman of Nyanja Holdings (PW!) testified that he borrowed money from City Finance in 1989 and in their intial engagement he was given a loan of Kshs.3,000,000/-.  A charge was created over his property LR 209/4796/3.  The facility was an overdraft whcih was not to exceed kshs.3,000,000/- upon creation of the charge over the property, city Finance released a total of Kshs.6,773,279/-  Thereafter the plaintiff was developing another of his property LR No. 37/256/3 where he was constructing thirty four (34) apartments and needed funds to complete the project. The  Bank requested him to crete a charge over the property which he was developing for a sum not exceeding Ksh.10,000,000/- The plaintiff proceeded and executed a charge over LR37/256/3 (the suit property) on 4/9/1992.  Although the plaintiff applied for a loan of Kshs.10,000,000/- only Kshs.3,890,707/- was disbursed to Nyanja Holdings.  For this loan, no letter of offer was executed and so the relationship was covered by existing laws and the charge dated 4/9/92 which stipulated that interest would be charged at a rate not exceeding that allowed by the law.  The bank unlawfully introduced a monthly extra charge of 5% for consultancy management and appraisal fee.  This was not provided in the charge or any other contractual document .  Later in June 1993 the defendant unilaterally increased the interest rate to 33 % and by 1997 the interest rose to 47% and in some instances they charged 75% and 38% and manipulated the account to ask for Kshs.130,403,293/- as at November 1997.

The plaintiff engaged his accountant to analyze the account and he found that the bank had charged Kshs.141,241,496/- as interest.  This he said was contrary to the charge document.  Upon making enquiries on the gazette notices in question he realized that the legal rates of interests was 14% to 19%.  The plaintiff contends that the bank did not  charge interest according to the law and the loan was therefore tainted with illegalities.  The plaintiff avers that he repaid the bank in cash of Khs.14,000,000/- which cleared the principal amount borrowed.

According to the plaintiff the bank did nto relent but it threatened to auction three of his properties including his home.  He offered to sell his property at Southlands Langata LR. No.72/1327 to off-set the outstanding  amount.  He spoke to one Muoki the credit and administration manager who informed himt hat the bank had a buyer for Kshs.25,000,000/- .  Mr. Muoki informed him that a surplus upon sale amounting to Kshs.8,000,000/- which would be refunded to him.  However only Kshs.7,900,000/- was paid to him.  To his suprise, the bank only credited Kshs.15,000,000/- to his loan account.  It is the plaintiff’s contention that by releasing th extra sums to him, the bank indicated that the loan was liquidated but hey did nto close the account as agreed but started charging interest on interest at the rate of 36-48%.  They then proceeded to sell his property No.209/479/3 without his consent for Kshs.14,000,000/- instead of Kshs.18,000. 000/-.  This amount was credited into his account after two years and he never received any communication as far as the sale of the property was concerned.  No completion  statement was sent to him by the bank.  Despite the sale of his properties, the bank purported to sell his flats erected on LR No. 37 256/3.  It is the plaintiff’s  contention that the sale was unlawful for the resons that he was not served with the statutory notice demanding payment at least 90 days  before  the sale.  That the bank never furnished him with a full statement of account showing the total drawings.  That the bank charged interest in excess of what was provided under the bar.  That the property was grossly under valued as it was sold for Kshs.23,000,000/- instead of Kshs.55,000,000/- which was its value at the time.  It is the plaintiff’s assertion that at the time of sale, there was no outstanding loan.  The property was not advertised for sale.  The defendant did nto obtain a valid valuation before the sale.  That there was no sale agreement between the bank and the 2nd defendant, Tripple Eight Investment Limited.  That the sum of Kshs.23,000,000/- was not reflected anywhere in the account of the 1st defendant.  It is the contention by the plaintiff that the bank had no right to sell his property by public auction as it had already filed a suit to recover what it was allegedly owed.  H has urged the court to rely on the case of Clesoi Holdings –v- Prime Bank H.CCC No.148/2011.

He urges the court to find that the rent belongs to him as there was no valid sale and the purchaser has never set foot on this property.

8. The plaintiff admitted during cross-examination that he did default on loan repayments but contends that all the loans were repaid.  The plaintiff contend that at the time the property was sold there was an order for status quo to be maintained. The plaintiff relied on a list of documents filed in court on 24/7/2019, and 28/8/11, a reconciliation report filed on 5/9/2019 and a valuation report of the suit proerty dated 6/9/2019.

9. The plaintiff called two witnesses PW2 and PW3 who are valuers and they testified that the value of the suit property was grossly under valued at the time it was sold to the 3rd defendant.  According to the two valuers, the property was worth about 40 to 60 million.

10.   The 1st defendant called its witness, Christine Wahome (PW2) she relied on her witness statement filed on 5/9/2019 and a bundle of documents dated 26/7/2010.  She testified that the plaintiff, Njanja Holdings obtained a bank loan facility from City Finance which later merged with Jamii Bora Bank but the banking relationship between plaintiff and the bank remained.  She testified that the plaintiff took an overdraft of Kshs.10,000,000/- and offered the suit property as security.  That there was persistent default by the plaintiff and the bank exercised its statutory power of sale over the property.  She testified that the bank started the process of sale in 1996 and in 1998 the bank gave instructions for the property to be advertised for sale by public auction.  The auction was however cancelled after the plaintiff presented a proposal for payment.  The proposal was not forthcoming and the property was advertised a second time .  When the option of sale by public auction failed in 1998, the bank opted to sell the property by  private treaty two years later in the year 2000.  That prior to the sale the bank commissioned a valuation to ascertain the market value.  That the sale was under bank’s statutory power of sale.  That the bank confirmed from its advocates that there were no orders stopping the sale.

11.  The witness was however not in aposition to tell how much money was owed by the plaintiff at the time the property was sold.  She further admitted that various properties of the plaintiff were sold to service various loans of Nyanja Holdings but she could not tell the effect of the sales of the properties on the loans owed to the bank by the plaintiff, nor could she show proceeds of the sale was paid int he account.  She went on to tell the court that she did not have the statutory notice issued to the plaintiff in her bundle of documents which was issued during the sale of the suit property. She conceeded that no 90 days statutory notice was issued to the plaintiff.

12.   The bank called its valuer, (DW3) who testified that he was unable to access the suit property and he therefore gave an estimated value of the property.  He admitted that failure to assess the interior of the premises could have caused the large difference in the valuation arrived at.  This essentially tends to led credence to the plaintiff’s contentiont hat the property was undervalued at the time of sale.  He told the court that he was not given any information byt he bank, does not know what rent income was.  He said if he had viewed the interior the value would have changed.  He admitted that he could not defend the report.

13.   The 3rd defendant called its witness, Rigathi Gachagua (DW1) who relied on his statement dated 4/9/2019.  He testified that he is a director of the 3rd defendant.  That the 3rd defendant filed Civil Case No.993/2002 as they were the registered proprietor of the suit property having bought it vide an agreement between the company and the bank, City Finance.  The purchase price was Kshs.23,000,000/- which was paid and acknowledged .  That they were made aware that the sale was under the banks statutory power of sale.  The transfer was executed and the property was transferred.  He stated that at the time of the transaction he was not a director of the company.  He could not tell whether there was a receipt for the payment of the money and could not tell how payment was made.  He did not produce a cheque or a bank transfer of funds and denied that there was collusion with the bank and money was not paid.  He did not produce a receipt to prove that stamp duty was paid.

14.   The 3rd party called (DW3) Brian Muriungi who is an advocate of the High Court of Kenya.  He relied on documents filed on 4/9/2019.  He testified that they had acted for the 1st defendant City Finance in Civil Case No.1965/1991.  He testified that they wrote the letter dated 27/10/1999 which the bank says formed the basis upon which they used to sell LR. No.37/256/3.  He testified that no advice was given by the 3rd party to the bank to sell the property.  He contends that the letter was factually correct.  He further testified that the suit property was not a subject matter in the plaint of the suit NO.1965/91.

15.   Submissions:

At the close of the hearing, the parties filed submissions.  For the plaintiff, Nyanja Holdings Limited submissions were filed by its counsel on record Gichuki Kingara & Company Advocates.  It is submitted that the Plaintiff started dealign with City Finance in 1989 when it borrowed Kshs.6,773,279 secured by a charge over LR 209/4796/3.  In 1992 the plaintiff applied for a loan to develop the suit property LR No.37/256/3.  He applied for Kshs.10,000,000/- but only Ksh.3,890,707 was disbursed.  Since no letter of offer was executed the relationship was covered by existing laws and the charge dated 4/9/1992 which provided that interest would be charged “at a rate not exceedign that allowed by the law” (page 169 3rd party’s list of documents).  The plaintifs submits that the Gazette Notice No.1617/1990 whcih affects loans of  over three years was revoked by the Minister for Finance.  He urges the court to consider the effect of revocation of the Gazette Notice and submits that the revocation of the Gazette Notice on 16/7/1990 was to bring into effect the previous legal notice that is, Gazette Notice No.1458/1990.  The plaintiff submits that the bank loaded illegal debits totalling more than 141,000,000/- by charging varying interest rates, capitalizing interest monthly and applying penalty interst over and above contractual rates and applying a variable rate whimsically .  The plaintiff submits that the bank did not serve a statutory notice on the plaintiff.  The sale of the suit property was at gross under value.  He relies on Section 9(ii) of the Land Act.

He submits that it is in the interest of justice that the sale be set aside as the purchaser` would get undue advantage and acquire the property fraudulently.  It is the plaintiff contention that the bank did not shed any right as to why the property was sold by private treaty cladestinely or how the purchaser, Tripple Eight Limited came to know of the property and whether there were other bids.

The plaintiff cites Rule II of the Auctioneers Rules whcih requires that a professional valuation be carried out not more than 12 months prior to the proposed sale.  He submits that no valuation was conducted as required under the rules.  He relies on the case of Wamuchi –v- HFCK H.CC 2754/1998 where Justice Onyango Otieno (as he then was) affirmed that the notification of sale should comply with Rule II of the Auctioneer’s Rules.

The plaintiff further relies on the case of Mbuthia –v- Jimba Credit C.A No.111/1988, Court of Appeal where Platt J.A stated:-

“it would seem therefor that the issue for trial will be whether the suit premises was sold for such an under-value, as would entitle the court to set the sale, and hence prevent  the transfer and registration of the land in the name of the second defendant.  That would depend on the terms of Sec. 77 of the Registered Land Act, (Cap 300) which provides that the Mortgagee is bound to act in good faith, and have regard to the interests of the Mortgagor.  What is meant by having “regard to interests of the Mortgagor”? There is similar legislation in England (see Section 101 of the Law of Property Act (1925).  In Halsbury’s Laws of England, 4th Edition Vol. 32 paragraph 276 it is stated:-

“ If the Mortgagor seeks relief promptly, sale will be set aside if there is fraud, or if the price is so low as to be in itself evidence of fraud, but not on the grounds of undervalue alone, and still less if the Mortgagor has in some degree sanctioned the proceedigns leading up to the sale,”

When the plaintiff alleges that the sale was unfair, no more.  The issue arising from plaint therefore, is whether the sale was unfair in the context of it being a fraud at least impliedly so, fromt he allegedly low price itself.”

The plaintiff submits that failure to serve the statutory notice renders the resultant transfer as null and void.  He relies on Gitiha –v- Gatoto, Justice Ogola, where it was stated-

“ Now turning to the issue of the service of the statutory Notice under Section under section 74 of the Registered Land Act Cap 300.  As already stated above, it is the Plaintiff’s contention that he was never served with a statutory notice.  It is also instructive to note that the law applicable to the exercise of the statutory power of the sale herein is to be found in the Registered Land Act (now repealed) as the suit properly charged was registered under the sid Act.  Therefore, Section 69 of the Transfer of property Act,1882 was introduced and applied in Kenya as a substantive law by Article 11(b) of the East African Order in council, 1897 in respect to parcels of land registered under the Registration of Titles  Act.

Moving forward, the 3rd Defendant’s witness, Mr. Joseph Matheka (DW3) testified that before the sale, the plaintiff was issued with a notice dated 13th June 1984.  It was the testimony that a notice had been posted to the plaintiff’s address.  However, he did not produce a certificate of posting or any documentary evidence to show that the Statutory Notice was indeed served on the  Plaintiff.  See: Ochieng and Another vs Ochieng and Others, Civil Appeal No. 148 of 1995 EALR (1995-98) at page 260.  In the circumstances it is plain that the plaintiff was not served in terms of Section 153 of the Registered Land Act (Cap.300)

It is trite law that non-service of a statutory notice is a fundamental breach of the provisions of Section 74 of the RLA which derogates the chargor’s equity of redemption.  In essence without service of valid statutory notice, the power of sale does not crystallize and any ac done by the bank to dispose the suit property amounts to an illegality.

Having made the above observations, it is clear that the law supports the proposition that where a statutory notice was not served the sale is null and void.  Service of a statutory notice is a statutory requirement and a chargee’s powere of sale is not exercisable without proof of such service.  It therefore means that the sale by  prublic auction conducted on 30th June 1994 was void and this court has no powers to give it any legal life”

This decision was upheld by the Court of Appeal (Nambuye, Kiage, Waki) who also held;

“ As to the consequence of failure to issue the statutory notice, we think the learned Judge properly followed this Court’s decision of OCHIENG & ANOTHER vs. OCHIENG & OTHERS (supra) which was binding on him.  In that case, appellants filed suit challenging the sale by public auction of some charged properties exercise of a chargee’s power of sale. They challenged the sale on ground, inter alia, that they had not been served with statutory notice.  Even though the Bank’s  witness produce file copies of letters sent as notice to appeallnt’s last known address, he did not produce any certificate of posting.  Reversing the High Court’s finding that the sale was proper, this court held that:

“It is for the chargee to make sure there was complieance with the requirements of Section 74(1) of the Registered land Act and the burden was not in any manner on the chargor.  Once the charger alleges non-receipt of the statutory notice it is for the charge to prove that the notice was in fact sent.  The bank had faiuled to produce stamps showing proof of posting of the registeed letter(s) containing statutory notice.  In the absenc eof proof of such posting, the sale by auction was void.  A sale which is void does not entitle the purchaser at such sale to obtain proprietorship or title to the land sold.............”

The case at bar on all fours with that decision and the conclusions the learned Judge arrived at were therefore correct in law.  Section 74(1) of the RLA was designed to offer protection to chargers by protecting them from situations where their property would be disposed to without the requisite notice.  It was a right conferred by statute and the courts could not lightly treat or minimize any breach of the said right.  Auction sales not proceeded by the requisite statutory notice  were not mere irregularies.  They were unlawful, null and void, incapable of passing effective and proper title to the purchasers, as illegality cannot engender legal title.  The learned Judge was right to find and hold that innocence of Gitahi’s purchase was not curative of the fundamental defect in the title due to the absence of the requisite notice.

Further in Murang”a ELC No.498 of 2017, Justice Kemei encountered a similar situation of lack of service of a Statutory Notice.  He stated;

“It is trite that the charge has power to exercise Statutory Power of sale within the said provisions.  However such sale must be done within the legal limits set out and the charge must comply with the mandatory terms of statute failure which the sale become void...............having held that there was no valid sale, valid Statutory Notices valid nuction and that the plaintiff has proved fraud and collusion on the part of the Defendant  the justice of the case necessitates proper orders----------- it is hreby declared that the sale of the parcel of land NO.Loc.20/Githiro/937 and the subsequent transfer to the 3rd Defendant is illegal fraudulent, null and void.  It is theeby orderd that the tible held by the 3rd Defendant be and is hereby cancelled  and the register to be rectified to revert to..........” (Plaintiff).

The plaintiff submits that he did not receive any statutory notice a fact which was not rebutted by the bank as the bank’s witness stated that the bank did not get the file relating to Nyanja Holdings from its predecessor.

He relies on C.A 143/2006 where the Court of Appeal stated that once the charger alleges no receipt of the statutory notice, it is for the charge to prove that such notice was infact sent.  The plaintiff submits that the burden was not discharged.  He relies on Nyeri C.A  No. 194/2011 where the Court of Appeal held that the sale by public auction was null and void and not capable of passing any proper and legal title to the 3rd respondent for want of service of Statutory Notice. The plaintiff further  relies on Kamau & Another –v- Njuguna & Another HCCC 8/2011 and Mundia –v- Equity Building Society HCCC 1592 of 1999.

The plaintiff submits that no money was owed to the bank at the time of sale and therefore it had no justification for the sale of the suit property.

For the 1st defendant Jami Bora Bank, nine issues were raised.

Firstly, they urge the court to consider whether the 1st defendant’s statutory power of sale had accrued and whether it was exercised procedurally.

The 1st defendant submits that the plaintiff admitted that he defaulted in repayment of the loans and sought indulgence to repay the amounts.  That the plaintiff is estopped from denying the indebtedness.  It is further submitted that the plaintiff was notified of the banks intention to sell the suit property in exercise of its statutory power of sale.  He relies on Section 69 (A) (1) of India Transfer of Property Act.  He cites the Court of Appeal; decision in Rusell Company Limited –v- Commercial Bank of Africa Ltd & Another No.80/1991 which held that Section 69(A) (1) did not require the three months  period to be stated in the notice nor did its absence vitiate the notice or render it illegal.  He submits that the notices issued to the plaintiff satisfied the legal requirement at the time.  He submits that although the notices issued did not expressly state the three month period, the initial sales were scheduled to take place after expiry of that period.  That the same by private treaty was supposed to take place after the expiry of that period.  He urges the court to rely on Russell Company Ltd –v- Commercial Bank of Africa Ltd  & Another

On interest rates, it submitted that, the interest rates applied to the account were contractual and relies on clause one (1) of the charge which indicated that interest rates were to be decided by the render from time to time.  That it went a step ahead and informed the 2nd defendant of the rates that were being applied which were stated to be 36% which is what the amounts demanded was based on and not 25% as alleged by the plaintiff.  The 1st defendants impugns the report by the plaintiff’s witness who produced a report stating that the plaintiff had fully repaid the loan and contends that the report cannot stand the test of objective due to missing statement coupled with the removal of all charges and addition of fictitious repayments which negate the value of the report.  The 1st defendant relied on the case of Kenya Commercial Bank Limited- v- Rupa (K) Limited & 2 Others (2014) eKLR on the lack of objectivity of an expert engaged to recalculate. It is further submitted that the interest rates applicable to the facility in question were the rates as per the charge.  That Gazette Notice No.1617 dated 2/4/1990 which set the rates at a maximum of 19% was revoked by Gazette Notice No.3348 dated 23/7/1991 which reverted to the contractual rates of lending until 2016 when the Banking (Amendment) Act 2016 which introduced capping of interest rates maximum lending rate at no more than four percent above Central Bank base rate was enacted.  The 1st defendant contends that the applicable rates were the contractual rates.

The 1st defendant submits that it did not breach its duty to act in good faith and sell the property at the best value available.  It is submitted that the 1st defendant cause a valuation to be carried out and report to be filed so as to ensure the time value of the land was given.  The 1st defendant submits that the report by the plaintiff’s valuers is totally unreliable and are gross exaggerations.

16.   The 1st defendant submits that Section 69(1) of the India Transfer of Property Act 1959 allows sale by private treaty.  It is further submitted that the plaintiff did not prove the allegation of fraud.

17.   Finally it is submitted that the plaintiff is not entitled to the reliefs sought and contends that it is clear that the plaintiff obtained a loan facility, defaulted in repayment and the defendant procedurally sold the property in exercise of its rights under the charge.  The 1st defendant relies on Section 69B of the (India Transfer of Property Act and submits that the plaintiff’s remedy lies in recovery of damages if it is proved that thee was wrongful sale and transfer of the property in exercise of statutory power of sale under Section 69 & 69 A to 69E of the Indian Transfer of Property Act.  The 1st defendant submits it fulfilled all its obligation under the sale agreement and its obligation ended with the transferring of the property after the sale and had no further interest or control over the suit property.

On the claim for indemnity the 3rd party, it is submitted that the 1st defendant relied on assurance of their duty appointed advocate in meaning the decision to proceed with the sale 1st defendant submits that it would be entitled to indemnity in the unlikely event that the court would find in favour of the 2nd defendant on the ground of existence of court orders restraining the sale of the property.

18.   As regards Tripple Eight Investments (Kenya) Limited who I have referred to as the 2nd defendant, they raised four issues for determination by this court.  These are:

1) Whether the sale of the suit property by the 1st defendant to the plaintiff is liable to cancellation

2) Which party should be granted possession of the suit property by the court.

3) Whether the plaintiff is entitled to the claims it has made against the 1st defendant under the agreement.

4) Which party is entitled to costs.

The 2nd defendant submits that at the time the suit property was sold in the year 2000, the laws in force were the Indian Transfer of Property Act, 1882.  The Government Lands Act (Cap 280 Laws of Kenya), Registration of Titles Act (Cap 281), Land Titles Act (Cap 282) and the Registered Land Act (Cap 300).  They submit that these laws were repealed under Section 109 of the Land Registration Act in the year 2012 but that under Section 106 (2) and (3) and Section 162(1) the Act provides the law applicable to transactions before coming into force of the Act, is the law under the repealed Acts.  That the law applicable in determining whether the sale of the suit property under the agreement in liable to cancellation is to be found in such laws.  It is the contention by the 1st defendant that the agreement between the 1st defendant and the plaintiff was under  the Registration of Titles Act  and the Indian Transfer of Property Act.  The 2nd defendant submits that in light of  Section 69(3) of the Indian Transfer of Property Act and Section 75 of the Registration of Titles Act the prayer for the cancellation of the sale of the suit property under the agreement has no foundation in law.

The 2nd defendant further submits that it is protected under common law and equity as a bonafide purchaser for value without notice.  He relies on Weston Gitonga & 10 Others –v- Peter Rugu Gikanga & another (2017) eKLR where it was held,

“23 Black Law Dictionary 8th Edition defines “Bona fide purchaser” as:-

“One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claim’s or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”

“In the Ugandan case of Katende –v- Haridar & Co. Ltd (2008) 2 E.A. 173,it was held:-

“ For the purposes of this appeal it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly to successfully rely on the bona fide doctrine (he) must prove that:

a) he holds a certificate of title

b) he purchased the property in good faith.

c) he had no knowledge of the fraud.

d) he purchased for valuable consideration.

e) the vendors had apparent valid title.

f)  he purchased without notice of any fraud

g) he was not party to any fraud.

A bona fide purchaser of a legal estate without notice has absolute unqualified and answerable defence against claim of any prior equitable owner.”

The 2nd defendant submits that it was a bona fide purchaser and he cannot be held responsible for the same as it had no part to play in the 1st defendants assessment of the value of the property before it sold it to them.  That the plaintiff did not adduce evidence to demonstrate any fraudulent or extraordinary interaction between the 1st and 2nd defendant but that the entire case against it is premised on mere speculation and pure conjecture.

On the issue as to who should be granted the suit property by the court, the 2nd defendant submits that it should be given to its lawful owner and relies on Article 40(2) of the Constitution of Kenya which provides that;

“Parliament shall not enact any law that permits the State or any person to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description.”

That since the 2nd defendant had demonstrated that he is the lawful owner of the suit property, he should be granted possession of it by the court.

Finally on the question as to whether the 2nd defendant is entitled to the claims it has made against the 1st defendant under the agreement, it is submitted that the 1st defendant is under an obligation to perform all its obligation under the contract.

On costs the 2nd defendant submits that it is entitled to costs.

For the 3rd party it is submitted that the issues for determination are whether LR No. 37/256/3 was subject of any injunction and whether the 3rd party advised the 1st defendant to sell it.  Whether the 3rd party is liable to indemnify the 1st defendant and whether the doctrine of ‘lis pendens’ is applicable in the matter.  The 3rd party submits that it had written to the 1st defendant informing them that LR No.37/256/3 was not subject of H.C.CC 1965/91.  That the 1st defendant did not amend the plaint to include the suit property.  That the plaintiff and Ms Christine Wahome agreed that they did not have a copy of the injunction or the order for maintenance of status quo.  The third party has urged the court to consider the evidence of the counsel who told the court that the letter sent to the 1st defendant dated  27/10/99 was factually correct on the status of LR No. 37/256/3 on whether or not it was subject to H.C.CC 1965/1991.  That this evidence has not been controverted.  The 3rd party maintains that it never advised the 1st  defendant to sell the suit property and was not involved in the sale of the property by the private treaty between the plaintiff and 3rd party.  That the 1st defendant has not proved that the 3rd party advised it to sell the suit property and therefore the claim must fail.

On whether the 3rd Party is liable for professional negligence, it is submitted that the relationship between the advocate and client is contractual, therefore an advocate is only liable where they act negligently in performing the said contract according to the instructions given.  He submits that there is no liability without fault.  That there is no legal basis for it to indemnify the 1st defendant.  In respect of this matter.  The 3rd party relies on National Bank of Kenya  Limited –v- E. Muriu Kamau & Another (2009) eKLR and Pan Africa Insurance Company Ltd and 2 Others –v- Clarkson & Southern Ltd 2008 and submits the 1st defendant has no valid claim against the 3rd party.

On whether the principle of “lis pendens”is applicable, the 1st defendant submits that it cannot apply in respect of a property that is infact not subject to proceedings before court.  That if the suit property was legally transferred, then it means that the same could not be subject to the principle of ‘his pendens.’  That it was upon the 1st defendant to seek further advice on whether or not to proceed to sell LR No.37/256/3 which they did not.

I have considered all the evidence adduced, the pleadings and the submissions by the parties.

ANALYSIS & DETERMINATION:

The issues which arise for determination are as follows:

1) With regard to the claim by Nyanja holdings, the question for determination is whether the sale of the suit property by private treaty was a pretence, a façade, a nullity and should be set aside,

2) With regard to the case by Tripple Eight Investments Limited the issue is whether they were innocent purchasers for value who are entitled to possession of the suit property.

3) Whether the 1st defendant has proved the claim for professional negligence against the 3rd party.

I will deal with the issues based on the following grounds:-

Issue of Improper Accounts and Exaggerated Interest

Nyanja Holdings in HCCC 1506/2000 contend that the sale of the suit property to Tripple Eight Investments Kenya Limited without notice to them was illegal and should be reversed because the bank sold property without notice to them, without reconciling their accounts and for undervalued price.  It is trite that the bank has a duty to maintain proper accounts.  It seems the bank did not maintain proper accounts with respect to the case of Nyanja Holdings.  This however cannot be a basis for Nyanja Holdings to assert that it is not indebted to the bank.  The burden was on Nyanja Holdings to proof that it had repaid the debt.  The law is settled on burden of proof and it is that he who alleges must proof.  Section 107, 108 and 109 of the Evidence Act provides that:-

“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

108. Incidence of burden.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given oneitherside. 109. Proof of particular fact.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

The plaintiff had the burden to prove that the full debt was repaid.  The plaintiff admitted the debt, the charge and that he had defaulted in repayment.  He has however raised two grounds on which he hangs on to say that he repaid the debt in full.

The first ground is that he offered his property at Nairobi West for sale.  The property, LR No.72/1327 was sold to off-set the outstanding amount.  He then entered into discussions with Credit Administration manager.  Mr Muoki who told him that there was a buyer for Kshs.25,000,000/- and that upon sale there would be a surplus of Ksh.8,000,000/-.  The property was sold and he was refunded Kshs.7,900,000/- Kshs.15,000,000/- was credited to his account.  That the bank also sold his property L.R.No.209/479/3 which was purportedly sold at Kshs.14,000,000/- which was credited into his account.  The plaintiff contended that he had deposited Kshs.14,000,000/- Nyanja Holdings therefore contends that as at December 1997 he did not owe the bank any money in view of the past payments and the sale of two properties.  He did not receive any communication from the bank as far as the sale of the properties was concerned.  His contention is that the 1st defendant could not have refunded money to him after the sale of Land Parcel No. LR No.72/1327 South Lands Langata if the debt had not been cleared.  The 1st defendant did not dispute the fact that the plaintiff, Nyanja Holdings, offered his property for sale to off-set the loan and after the bank realized what was due and owing to it and refunded Kshs.7,900,000/- to him.  It is my finding that if Nyanja Holding owed any money to the 1st defendant, the money was fully recovered after he offered the sale of his property which realized Kshs.23,000,000/- and the bank took what was due and owing to it and refunded the excess to the plaintiff.  The bank credited the amount of the plaintiff with Kshs.15,000,000/-.  The property was sold for Ksh.25,000,000/- but only Kshs.15,000,000/- was credited to his account, Kshs.7,900,000/- was refunded.  The bank did not account for Kshs.2,100,000/-.  I hold that the loan owed by the plaintiff to the bank was liquidated upon the sale of the plaintiff’s property by the bank.  The plaintiff Nyanja Holdings did not therefore owe the 1st defendant any money as at the time it sold his property.  The 1st defendant did not prove that the Plaintiff owed it money or even how much was owed to it.  The plaintiff, Nyanja Holding proved  that he had paid Ksh.14,000. 000/- to the 1st defendant a fact  which was not denied.  The plaintiff discharged the burden to prove that it had fully repaid the loan. The 1st defendant through its witness DW2 admitted that she could not tell the impact on the accounts of Nyanja Holdings after his properties were sold and could not show that the money was paid in his account.

18. The bank (1st defendant)  did not act in utmost good faith.   This    is demonstrated by various facts which are not in dispute.

Firstly, the 1st defendant did not serve the plaintiff with the prescribed statutory notice of sale.  This was admitted by the 1st defendant’s witness who stated that she did not have the statutory notice issued to the plaintiff.  The law on the statutory power of sale as regards the transaction between the plaintiff and the defendant is under

The Registration of Titles Act and Indian Transfer of Property Act. Though these pieces of legislation were repealed by Land Registration Act of 2012, they continue to apply to transactions that were under those Acts.  See Section 107(2) and (3) of the Land Registration Act 2012.

On the issue of Statutory Notice of sale Section69A (supra), a notice requiring payment is supposed to be served on the mortgagor.  There is no exemption in service of statutory notice regardless of the extent of default.  See Euro Bank Ltd (in liquidation –v- Twictor Investments Limited & 2 Others(supra).  A charger who fails to issue a statutory notice of sale has no lawful power to sell the property.  The 1st defendant did not issue a notice of sale and therefore the sale was unlawful and irregular.

The Court of Appeal in the case of TRUST BANK LTD –V- EROS CHEMIST LIMITED & ANOTHER [2000] eKLR pronounced itself on the requirement of that Section as follows:-

“In our judgment, the heart of this appeal lies in the central question as to what constitutes a valid notice under section 69(A) (1) of the Transfer of Property Act…….

The law clearly intended to protect the mortgagor in his right to redeem and warn of an intended right of sale.  For that right to accrue the statue provided for a three months’ period to lapse after service of notice.  In our judgment, a notice seeking to sell the charged property must expressly state that the sale shall take place after the three months’ period.

To omit to say so or to state a period of less than three months for sale (as in the Russel case) is to deny the mortgagor a right conferred upon him by statue.  That clearly must render the notice invalid.  In our judgment, with respect, there is a mandatory requirement that a statutory right to sell will not arise unless and until three months’ notice is given. We consider that the provision as to the length of the notice is a  positive and obligatory one; failing obedience to it a notice is not valid.  That being so, it seems to us that in failing to have the notice to say so, the Bank failed to give a valid notice, with the result the right of sale did not accrue under such a notice.” (emphasis mine)

The bank relied on various letters from its lawyers demanding payment.  These letters did not give the plaintiff the time frame to pay and do not meet the threshold of statutory notice.  See Trust Bank  case.  DW2 admitted that the notice was not served.

The 1st defendant did not furnish the full statement of his account.  The 1st defendant did not advertise the property for sale.  The property was sold under private treaty without any information being given to the plaintiff.  He was therefore denied the right of redemption.  The bank did not give any explanation as to why the property was sold by private treaty.  I do not agree with the 1st defendant that they could not get a buyer through public auction and opted  for a private treaty.  The evidence on record shows that the plaintiff kept on making payments to the bank culminating with sale of his property for ksh.25,000,000/- and the excess was refund.   The DW2 admitted that the auction was called off as the plaintiff made proposals to pay.  The sale of private treaty took place two years after the auction was called off.  The 1st defendant as a mark of good faith should have served the notice sale and advertise the property for the plaintiff to exercise his right of redemption.

PW2 Kenneth Muiru who is a qualified accountant demonstrated that the plaintiff had fully repaid the loan and there was an overpayment.  The Bank failed to show that there was an outstanding debt in the account of the plaintiff.

The plaintiff called PW2 who produced a statement showing that the plaintiff had fully paid his debt.  The 1st defendant challenged the statement by PW2 but I have no reason not to rely on it as the 1st defendant did not produce evidence to show what was outstanding, if at all there was, and relied on bank statements produced by the plaintiff.  This being a civil matter prove is on a balance of probabilities.  The plaintiff by calling PW2 proved on a balance of probabilities that the loan was fully repaid and the evidence was not rebutted.

The burden of proof, in civil cases, which the Plaintiffs failed to meet, was discussed in the case of EASTERN PRODUCE (K) LTD- CHEMONMI TEA ESTATE –V- BONFAS SHOYA [2018] eKLR, by Justice H.A Omondi thus:-

“The burden of proof in civil cases on the balance of probabilities was defined in the case of KANYUNGU NJOGU VS DANIEL KIMANI MAINGI [2000] Eklr, that when the court is faced with two probabilities, it can only decide the case on a balance of probability, if there is evidence to show that one probability was more probable than the other.”

The second ground raised by the plaintiff is on the interest charged.  He contends that the bank did not charge interest as provided under the law.  That the charge over LRNo.37/256/3 does not provide for payment of any interest at stipulated intervals for any interest or part thereof to have taken in arrears or remained unpaid for more than two months after becoming due.

No evidence was offered in rebuttal of these two grounds by the 1st defendant.  1st defendants witness stated that the account remained none performing.  She acknowledged that there were negotiations and the plaintiff was given indulgence to source funds to settle the amount outstanding.  She however did not tell the court whether funds were sourced and whether it reduced the debt or not.  The witness referred the court to letters of demand which show that there were conflicting amounts of the money demanded from the plaintiff.  For example a letter dated 6/10/1998 by Ndung’u Njoroge Kwach demanded Kshs.175,744,931. 00 with interest at 36% and yet another letter dated 6/10/1998 by Ndung’u Njoroge and Kwach dated 6/10/1998 demanded Kshs.155,633,292/40 at 36% interests. The instructions to the auctioneer was to recover Ksh.175,744,931. 80.  These discrepancies were not explained.  The 1srt defendant’s witness Christine did not in her statement shed light on how interest was charged.  During cross-examination she admitted that the bank had sold other properties of Nyanja Holdings.  She could not tell where the proceeds of sale were credited or the effect they had on the loans as she did not have the bank statements.  On interest she told the court that it was about 20%.  Though she said that the proceeds of sale did not liquidate the debt, she admitted that she was not aware of a counter claim by the bank.  The witness did not produce documents to controvert the plaintiff’s testimony.  She did not provide evidence that the proceeds of sale of the plaintiff’s properties was deposited in the account.  She therefore did not dislodge the plaintiff’s contention that he had repaid the debt in full.

On interest, it is the contention by the plaintiff that the charge did not specify the rate of interest save providing that “at a rate not exceeding that allowed by the law” and further specifically providing that; “the total money for which this charge constitutes a security (hereinafter called the mortgage debt’) shall not at any one time exceed the sum of Kshs.3,000,000/-) together with interest aforesaid.”

It is the contention by the plaintiff that the maximum rate was 19% per annum.  The plaintiff, Nyanja Holdings submits that the 1st defendant charged interests of 20%, 47% and even at times upto 75%. The plaintiff’s witness Kenneth Muiru Mwangi (PW2 testified that he did the accounts of Nyanja Holdings from January 1989 to 16/10/98 and gave a report on the rates of interests.  It is his evidence that interest charges was 141,271,496/- The loan amount according to PW2 was 10,663,986. 00 what was paid in the account was Kshs.14,132,000/-.  PW2 filed an amended statement on 5/9/2019 on the loans, loan repayment, legal fees, auctioneers fees, auctioneers fees and valuation fees as reflected in the statement produced by City Finance Bank Limited.  The statements shows that loan repayments were Kshs.58,230,420. 00.  Balance refundable to the plaintiff is Ksh.27,918,205/-. The interest charged by City Finance raged from 18% through to 19, 21, 22, 24, 27, 33,35,36,37 and 38.  According to PW2 the statement is based on statutory rates issued by Central Bank.  He relied on statements from City Finance.

The plaintiff referred to various Gazette Notices issued by Central Bank.  Gazette Notice No.1617/1990 sent out the interest rates ceiling.  This notice was revoked.  It is clear that the bank loaded illegal debits totaling more than Kshs.141,000,000 into the accounts of the plaintiff by charging varying interests rates, capitalizing  interest rates and applying over and above the contractual rates and failing to apply a specific rate of interests.

The defendant submits that the agreed rate of interest would not exceed that allowed by the law, decided by the lender and the lender need not inform the borrower of any charge in the rate of interest so payable.  The 1st defendant concedes that interest was charged to rates which went upto 36%.  This however resulted in driving the mortgage debt to an amount over and above Kshs.10,000,000/- agreed in the contract.  The 1st defendant admitted that it charged interest which exceed what was permitted by the law.

The courts have observed that although parties enter contracts, as to terms and conditions, banks should not charge interest in a way that affects the redemption chances of the borrower.

Lady Justice Khaminwa in HUMPHREY WAINAINA MUNGAH V HOUSING FINANCE LIMITED [2009] EKLR on this issue, stated;

“2. The case of Juma vs. Habib [1975] EA 108 the case addresses the issue of whether or not, the court has jurisdiction to intervene on the rate of interest charged to a party when both parties had entered into a contract on such rate.

The court in its ruling held that it had jurisdiction put it thus:-

“I feel however, that the trial magistrate did not pose to consider whether the interest contracted was excessive.  It was not beyond his powers to do so.  The court has a discretion to award interest at less than the contracted rate when that rate is manifested excessive or unconscionable.”

The plaintiff further relied on the case ofGivan Okallo & another vs. HFCK – HCC No.79/2007.  The court was faced with a situation where the plaintiffs challenged the propriety of charges and interest levied on the account on grounds that they were illegal and uncontractual.

The defendant on the other hand stated that the charges and interest were recoverable on grounds of prevailing customs and trade usage in the banking and financial industry.  The court however upheld the plaintiff’s position by stating:

“equally, it is not in the interest of defendant to milk the plaintiff dry and drain all blood from them.  The court exists for the sole purpose of determining as to who is entitled to what.  In my view, the defendant cannot be allowed to engage in acts or omissions which are in contravention of the law.  The imposition of penal interest or default charges without the permission or knowledge of the applicant impedes or inhibits redemption rights of the applicant.”

Mbaluto J on the same issue of interest, in JOHN NJOROGE WARUI v UNIVERSAL BANK LTD, stated that the plaintiff also has a duty to show that the statements by the bank are incorrect or that the interest is wrongly charged. The court stated;

“With regard to the complaint that excessive or wrongful interest was charged, I think it should be noted that the applicant does not claim to be a qualified accountant or auditor. Accordingly, what he claims to be outstanding in accordance with his calculations must be treated as the product of an assessment by a layman. Section 176 of the Evidence Act provides:-“Subject to this Chapter a copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters transaction and accounts therein recorded.” To rebut the presumption created by the section, the applicant must tender evidence from a qualified accountant or auditor to show that the statements produced by the bank are incorrect. The applicant’s bare assertions to that effect will not do.”

“The Court of Appeal in the case ofPius Kimaiyo –vs- Co-operative Bank of Kenya Limited (2017) eKLRstated that –

“There is a perennial vexing nightmare for borrowers who take a relatively small loan from a lending institutions but a few years down the line, the institutions drops a bombshell of a demand for the immediate payment of colossal sum, literally bankrupting the borrower if not confining him to a hospital bed due to depression. The main bones of contention are invariably: uncertainty of lending terms and documentation, fluctuating rates of interest on arrears, additional interest, commissions, bank charges bank statements or lack of them among others which may or may not have been part of the written contract.” The court was dealing with a suit involving a borrower who had borrowed Kshs. 500,000/= from a bank which escalated to Kshs. 6. 2 million. The court quoted a decision in Margaret Njeri Muiruri –vs- Bank of Baroda(Kenya Limited)  CA 2014 eKLR where discretion by the bank to charge interest was considered and it was held;-

“the discretion of the Respondent in the present case to charge interest in this case was not completely unfettered, ……. we find it objectionable that the lender can vary interest to its benefit without any recourse to or passing such information to the borrower especially where such interests be………….the contract must be construed reasonably. It must be shown or atleast be self-evident that at time the interest was being charged it was brought to the attention of the borrower.”

The court then stated that it never shied away from unconscionable contracts and cited Kenya Commercial Finance Company Ltd –vs- Ngeny & Another (2002) 1 KLR where it stated:

“The court will not interfere where parties have contracted on arms – length basis. However, by its equitable jurisdiction this court will set aside any bargain which is harsh, unconscionable and oppressive or where having agreed to certain terms and conditions thereafter imposes additional terms upon the other party. Equity can intervene to relieve that party of such conditions.

The court held –

“We associate ourselves with the above case law. The unwritten terms of lending in relation to the overdraft in this matter which appears to have emboldened the bank to ….. amok in its interest charges upto 71 % p.a base the Hallmark of unconscionable transaction and we so hold”

The Halsbury Laws of England volume 22 (2012) 5th Edition at Para 208 states of unconscionability: Even in the absence of duress of persons or undue influence, there has long been jurisdiction to interfere with harsh and unconscionable transaction sin several different areas of the law; for instance in respect of salvage agreements or against contractual penalties forfeiture of mortgages, extortionable  loans or expectant heirs --. The Jurisdiction of the courts to set aside is based on unconscientious  conduct by the stronger party; relief will not be granted solely on the grounds that the transaction is unfair or improvident.”

I am inclined to find that the statement by PW2 is objective as it is based on bank statements from the 1st Defendant. I have said above that the report by PW-2 was not rebutted. The court is entitled to rely on evidence which is not rebutted and the adverse party has not controverted it. The unrebutted testimony of PW-2 stands out as revealing the truth of the accounts of the Plaintiff. Section 176 of the Evidence Act provides:

“Subject to this Chapter a copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters, transaction and accounts therein recorded.”

Although the 1st Defendant submits that PW2 did not ask for the statements, this is not made in good faith as DW2 the bank witness stated that they did not have the accounts of Nyanja Holdings. Furthermore, the penalties on interests were within the knowledge of the bank which they did not produce to controvert the report by PW– 2. The borrower was confronted with letters demanding payment of huge sums of money. The bank did not provide complete breakdown on th manner in which it charged interests for the court to determine whether it was unconscionable. In civil matters, prove is on a balance of probabilities and scales will tilt in favour of a party who has tendered some probable evidence. My view is that the Plaintiff has proved on a balance of probabilities that the bank charged interests at rates other than those allowed by the law. Section 39 Central Bank of Kenya Act before the amendment of 2000 provided that;-

“The bank may from time to time to time acting in consultation with the minister determine and publish the maximum and minimum rates of interest which specified banks or specified financial institutions may pay for deposits and charge for loans or advances.”

The Minister of Finance published Gazette notices including gazette notice 16. 7.1990 to cab interests rates. This was however revoked. Section 39(1) of the Central Bank Act remained in force. At the time the charge was created the legal rate of interest was 19% but the bank charged interest rates which went upto 36% according to the bank. There was no basis for charging such interest. I find that based on the statement by the Plaintiff’s witness (PW-2) the Plaintiff proved that he had fully repaid the loan. This report by PW2 shows that the interest accrued was 22,007,635/= and loan repayment of 58,230,420/= and a sum of Kshs.27,918,205/=. The 1st Defendant had recovered the debt owed by the plaintiff by the time it sold the suit property. The 1st Defendant had recovered over and above what it was lawfully required to recover from the Plaintiff it was therefore not entitled to sell the Plaintiff’s property. The bank therefore acted unlawfully and irregularly. The interest charged was unconstinable and I associate myself with the above authorities to hold that interest charged was unlawful.

The Plaintiff has also raised the issue that the property was grossly under valued. I agree with the Plaintiff that a proper valuation of the property was not done as the valuer admitted that he did not enter the premises, did not view any apartment, did not get any information from the bank, and does not know what the rent income was. He admitted that had he inspected the details on the walls and floor the value could have changed upwards.  Based on the things he said he did not do he was bold enough to say he could not defend nor stand by the report.  I find that the bank did not conduct a proper valuation before the sale.

The Plaintiff Nyanja Holdings called a witness Paul Munyiri who gave the value of the building at Kshs.63,000,000/= in the open market and forced sale of 42,500,000/=. He based the valuation on annual income, property enjoys 100% occupancy due to its location and return investment formula in valuation. Where value is determined by the number of years it can repay itself – forced sale 8 – 10 years and market value 10 – 12 years. That a property sold at a price that recoups itself in four years has been sold at gross under value. The Plaintiff also called Jacob Gathika who produced a report by Gimco Limited who also corroborated the evidence of Mr. Kagumba. I am inclined to belief the valuations done by the witnesses in view of the short comings by the Defendant’s valuer who admitted that proper valuation was not done. I find that the property was grossly under valued. The 1st Defendant did not act in good faith as it was required of it.  The Registered Land Act (Repealed) and the Land Registration Act expect a changee to get the best price and act in good faith with the best interest of the charger before selling a charged property. The Plaintiff has proved that the property was sold at gross under value and therefore the 1st Defendant failed the test of good faith. The sale did not comply with Rule II of the Auctioneers Rules as to reserve price and valuation of the property carried out not more than 12 months prior to the proposed sale.

The 1st Defendant sold the property under private treaty without informing the Plaintiff. The bank did not shed any light as to why the property was sold by private treaty. This sale according to DW-2 was done two years after the Plaintiff paid the loan and some balance was refunded. There was no justification for sale, first without compliance with the auctioneer’s Rules, without giving the Plaintiff the opportunity to exercise his right of redemption. The sale was therefore null and void and could therefore not pass proper title (I will deal with this further later in this Judgment)

The Court of Appeal(Karanja J, Okwengu J, Sichale J) in EURO BANK LIMITED (IN LIQUIDATION) -V- TWICTOR   NVESTMENTS LIMITED & 2 OTHERS [2020] EKLR discussed this issue of statutory sale under the previous land law regime below;

In dealing with this issue, it is paramount that this Court first interrogates the provisions of section 69A of the ITPA, 1882. The relevant provisions provide thus:-

“69A. (1) A mortgagee shall not exercise the mortgagee’s statutory power of sale unless and until-

(a)  notice requiring payment of the mortgage-money has been served on the mortgagor or one of two or more mortgagors, and default has been made in payment of the mortgage money, or of part thereof, for three months after such service;

or

(b)some interest under the mortgage is in arrears and unpaid for two months after becoming due; or( Emphasis added)….”

A careful reading of the above provision reveals the use of the word “or” denoting that there are different circumstances granting the mortgagee the right to exercise its statutory power of sale, namely, where the mortgagor has defaulted to redeem the mortgage three months after notice or; where some interest under the mortgage is in arrears and unpaid for two months after becoming due after service of the statutory notice. We need to emphasise that there are no circumstances whatsoever that exempt service of the statutory notice regardless of the extent of the default in payment. We shall advert to this issue later.

It is not in dispute that a notice was served; what is contested is the validity of the same. In the persuasive High Court case of Martha Khayanga Simiyu vs. Housing Finance Co. of Kenya & 2 OthersNairobi HCCC No. 937 of 2001(unreported) Ringera, J (as he then was) pronounced himself as follows:-

“A statutory notice which does not give the plaintiff a period of three months from the date of service to redeem the charged property as required by Section 74(2) of the RLA is defective… The chargee has no lawful power to sell the charged property for default in payment of charge debt unless and until the chargor has been served with a notice in writing demanding such payment and the chargor has failed to comply within three months of the date of service of such notice… The irregularities in the exercise of the power of sale, which are remediable in damages, do not in the premises comprehend failure to serve adequate statutory notice… Service of both an adequate statutory notice and notification of sale are necessary conditions precedent for the valid exercise of the statutory power of sale under the R.L.A and without compliance with those statutory commands, there can be no valid exercise of the power of sale and therefore it cannot be said that the chargor’s equity of redemption is extinguished in any sale conducted in breach thereof. Neither can it be properly contended that the chargor’s remedies if any such sale has taken place is in damages as provided in Section 77(3) of the Act. Without compliance with those conditions precedent, the purported sale would be void and liable to be nullified at the instance of the chargor…”(Emphasis supplied)

The court had the following to say for circumstances where there had been an earlier notice and a continued default;

“40.   From the record it is clear that after receiving the notice giving (whether it was for the 14 days or 90 days), the advocates on record for the mortgagor engaged counsel for the Bank with proposals on how to liquidate the loan. They did not complain at all that the notice they had been given was invalid. They actually acted on it. Following the discussions, the auctioneers were advised to hold any advertisement for the sale of the suit property. That was in November 1998. The property was not re-advertised until April 2001. The question we should be asking, in our view is whether in these circumstances, it was necessary to re-issue another statutory notice. The answer to this is in the negative as the default in payment had continued for more than 3 months following the notice in view of Section 69A(1) (a). This was the position held by this Court in Nancy Kahoya Amadiva vs Expert Credit Limited & Another[2015] eKLRwhere it was held:-

“There are also instances where a notice need not issue, where interest for more than 2 months is due and remains unpaid. This was held by this Court inTrust Bank Limited v Kiran Ramji Kotendia Civil Appeal No.61 of 2000 eKLRand followed in James Ombere Okoth v East African Building Society and others Civil Appeal No 202 of 1996 (unreported). There is no evidence on record of payment having ever been made by the appellant to the respondent towards repayment of the money borrowed for more than two months. For this reason alone, no notice was issuable to the appellant as explained above and it does not behove us to consider the issue any further.”(Emphasis added)

From the above analysis, it is clear that our finding is that the notice served on the 1st respondent was valid as there was compliance with section 69A(1) (a) of the ITPA .

Having so found, the next issue is whether, in view of our earlier finding to the effect that there was compliance with section 69A(1)a, the 1st respondent was entitled to the relief awarded by the High Court. Section 69 B of the TPA then kicks in. The same provides as follows:-

“S. 69B. (1) A mortgagee exercising the mortgagee’s statutory power of sale shall have power to transfer the property sold for such estate and interest therein …

(2) Where a transfer is made in exercise of the mortgagee’s statutory power of sale, the title of the purchaser shall not be impeachable on the ground-

(a)   that no case had arisen to authorize the sale; or

(b)   that due notice was not given; or

(c)   that the power was otherwise improperly or irregularly exercised, and a purchaser is not, either before or on transfer, concerned to see or inquire whether a case has arisen to authorize the sale, or due notice has been given, or the power is otherwise properly and regularly exercised; but any person damnified by an unauthorized, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power.(Emphasis ours).

The irregularities complained of which arose in the cause of the sale should be equated to irregularities arising at a public auction. As stated in the Amadiva case (supra), if the sale was improper, or caused prejudice to the mortgagor, then in our view, the recourse lay in damages and not in cancellation of the Title Deed. In any event, even if the Court was minded to cancel the 3rd respondent’s Title Deed, then it should have been restored to the position before the sale, and not revert it to the 1st respondent who had not cleared the loan with the Bank.

56.  As stated earlier, we hold the view that the conduct of the 3rd respondent was not that of a diligent bona fide purchaser as described in Katende v. Haridar & Company Limited (supra) and we agree with the learned Judge’s finding that the dealings in the suit property by both the 2nd and 3rd respondent were marred with irregularities. Nonetheless, having found that the statutory notice was proper, and in view of the provisions of section 52 ITPA (repealed) and section 69B TPA cited above, we allow the appeal as consolidated and set aside the impugned judgment. In its place we order that the Title Deed issued to the 1st respondent be cancelled. The property to revert to the 3rd Respondent, with the 1st respondent being at liberty to sue for damages.”

I have quoted the above decision  at length as I am well guided. What the court was saying is that where the mortgage had served a statutory notice of sale, the mortgagor’s remedy was in damages. In this case the sale by the 1st Defendant was null and void as the Plaintiff was not served with the statutory notice of sale. There were irregularities as the 1st Defendant proceeded to sell the property under private treaty after the Plaintiff had fully repaid the loan. In line with the holding by the Court of Appeal decision above, irregularities in exercise of the power of sale which are remediable in damages do not comprehend failure to serve statutory notice. Service of statutory notice and notification of sale are necessary conditions precedent for a valid exercise of the power. There can be no valid exercise of the power of sale and it cannot be said the chargor’s equity of redemption is extinguished in any sale conducted in breach thereof, neither can it be said the chargors remedies if any in such sale has taken place is in damages. The irregular sale by the 1st Defendant without service of statutory notice of sale and after the entire debt was repaid and surplus refunded entitles the Plaintiff to have the title deed restored.

I will now deal with the issue of Bona fide purchaser and the protection of commercial transactions.

ISSUE OF INNOCENT PURCHASER FOR VALUE AND PROTECTION OF COMMERCIAL TRANSACTIONS VIS A VIS PROPER REMEDY AFTER STATUTORY SALE

The position taken by Triple Eight Investments necessitates a look into the position of a purchaser in such circumstances. The Court of Appeal (Karanja J, Asikhe-Makhandia J and Mohammed J) in JOSE ESTATES LIMITED V MUTHUMU FARM LIMITED & 2 OTHERS [2019] EKLRgave the following determination on that question and also stated the position of a party that lost land under an irregular statutory sale. The court stated;

“The trial court appears to have ignored the well settled principle that it is of utmost importance that the courts uphold the rights of parties to commercial transactions. It is the firm tradition of common law to do so and if the tradition is departed from, it will be a recipe for chaos. See Aiman v Muchoki(1984) K.L.R. 353,quoted with approval in the above-referenced case ofNancy Kahoya Amadiva v Expert Credit Limited & Another [2015] eKLR

This then brings us to the question as to whether the appellant was an innocent purchaser for value. We pause to ask ourselves the question; what is the extent of due diligence to be exercised by a purchaser? Black’s Law Dictionary 9th Editiondefines a bona fide purchaser as:

“One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”

Similarly, in Katende v Haridar & Company Limited[2008] 2 E.A.173 the Court of Appeal in Uganda held that:

“For the purposes of this appeal, it suffices to describe abona fidepurchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on thebona fidedoctrine, … (he) must prove that:

(a) he holds a certificate of title;

(b) he purchased the property in good faith;

(c) he had no knowledge of the fraud;

(d) he purchased for valuable consideration;

(e) the vendors had apparent valid title;

(f) he purchased without notice of any fraud;

(g) he was not party to any fraud.”

In the present appeal, it is common ground that the appellant holds the certificate of title to the suit property and is in actual possession; he purchased the suit property in good faith for a valuable consideration without any notice of fraud and none of the respondents have demonstrated that the appellant had any notice of the irregular exercise of the statutory power of sale.”

The second Defendant Tripple light investment was not a bona fide purchaser  for the following reasons;

-    Though it holds a certificate of title, the witness Rigathi Gachagua, he was unable to prove that stamp duty was paid. This impeaches the title.

-    Triple Eight Investment Kenya Limited did not discharge the burden to prove that it paid for the purchase price of the property.  Its witness relied on acknowledgment of payment and the fact of transfer of property to it. It is my view that these facts are insufficient to prove payment. A party has a burden to prove that consideration passed by production of receipt or short of that evidence of transfer of funds from its bank accounts to the accounts of the vendor a cash deposit in the bank or with advocates of the bank, issuance of cheques and or other available modes of payment. He who alleges must prove. I find that the 2nd Defendant Triple Eight investment did not discharge the burden to prove on a balance of probabilities that consideration passed. It was crutial for them to demonstrate this since the money  Kshs.23,000,000 was not reflected int he accounts of the 1st defendant.  It is my view that acknowledgment is not sufficient because there can be collusion.  A claim that money value was paid or passed must be demonstrated in a manner that is more convincing.  Indeed it is the practice when drafting agreements to quote the mode of payment on the agreement and not just an acknowledgment alone. The claim by the plaintiff that the sale was a pretence, a facade and a nullity was not disaproved.

-    The sale was by private treaty. The 2nd Defendant did not tell the court how it became aware of the sale by way private treaty nor could the bank. It follows that sale was cladestine and the purchase by the 2nd Defendant. Tripple Eight investment fails the test of having purchased the property in good faith. Its purchase of the property was unclear and the circumstances were grey. There was contradiction on how they came to know about the sale.

-    The 2nd defendant did not take possession of the suit property nor did it attempt to evict the plaintiff.  Todate it has not taken possession. The 2nd defendant is not seeking to evict the plaintiff.  The Court of Appeal in C.A 223/00 Tripple Eight Investment Kenya Limited –v- City Finance Holding and Another held that the option by the 2nd defendant (Tripple Eight Investment Kenya Limited) was to effect eviction by a suit against Nyanja Holdings by filing a plaint.  The court also stated hat  the owner was in possession and was not a tenant of the bank. The 2nd defendant shied away from seeking eviction.

-    In this case the vendors right to sell had not accrued for the reasons I have stated in this judgment.

-    The purchaser Tripple Eight Investment participated in the fraud by purchasing the property at throw away price. It had not bid for property and was at pains to tell how it came to engage the bank through private treaty when there was no advertisement, the bank had no evidence of other bids and excluded the Plaintiff who had a right of redemption.  The 2nd defendant bought the property at gross under value that in two years time has  recovered  (or was to recover) half purchase price and recover the entire purchase price in four years.  All the valuers agreed that for this to happen it is an indication of under value.

-    I find that the 2nd Defendant is or was not a bonafide purchaser. It forfeits its right to protection as a party in commercial transaction. The purchaser would get undue advantage and acquire property fraudulently.

ISSUE OF PROFESSIONAL NEGLIGENCE BY 3RD PARTY

The 3rd party is accused of professional negligence that led to loss/sale of the property herein. The standard of what is professional negligence was discussed in the cases below;

Kasango J inDONNA FERRARI LTD V PHILLIP KARANJA WACHIRA T/A KARANJA OTUNGA ADVOCATES & ANOTHER [2020] EKLR;

“6. A useful place to start in discussing the issues above is to determine what negligence is and what its standard of proof is.  On this I will rely on a discussion in the case Malton v Attia, (2013) ABQB 642 (CanLII)

“What is negligence? In the foundational case ofDonoghue v Stevenson[1], Lord Atkin explained negligence as a failure to act in a reasonable manner to one’s neighbours, when these are “... persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.”...................................

Standard of Care

An act or omission is negligent when it is conducted in breach of a person’s standard of care. The appropriate standard of care is a question of mixed fact and law.[2]

The scope of a standard of care is a contextual question – “It is not a matter of uniform standard. It may vary according to the circumstances from man to man, from place to place, from time to time.”[3] In other words, standard of care depends on the facts of each case.”

I also wish to make reference to the caseKimani Ngondu Mburu v Catherine Waithira Mwangi & Co. Advocates [2013] eKLR viz:

“To this end, the Court has received some considerable guidance as regards to what amounts to professional negligence from the Court of Appeal case ofChampion Motor Spares v Phadke (1969) EA 42. At page 47,Duffus Ag V-P(as he then was) had this to say on the subject:

“The extent of an advocate’s liability to his client for negligence has been considered at various times by this Court.  I would refer to the case of Stephens & Co. v. Allen (1918), 7 E.A.L.R. 197.  This case went to the Privy Council (1921), 8 E.A.L.R. 211.  The following extract from the judgment of the Privy Council is of some assistance:

“The question of negligence with regard to the performance of a solicitor’s duty must to some extent be affected by the local conditions and the local circumstances, as to which their Lordships might not be perfectly informed.  In the present case the negligence is alleged to be due to the ignorance of the provisions of an Act of Parliament.  It may well be that in Nairobi this Act of Parliament has practically never been heard of in judicial proceedings; it is impossible for their Lordships to know; but the question as to whether a solicitor is negligent or not in omitting to give effect to a statutory provision cannot be disentangled from the consideration of whether the statute that is involved is one which is of constant and common occurrence in practice or whether it is one unfamiliar and remote.  With those circumstances their Lordships are unable to deal.”

In the case Kogo v Nyamongo & Nyamongo Advocates (2004) I KLR 367 the Court held:

“An advocate is not liable for any reasonable error of judgement or for ignorance of some obscure point of law, but is liable for an act of gross negligence or ignorance of elementary matters of law constantly arising in practice.””

The first defendant relies on the following grounds set out in the 3rd party notice.

(a) The 1st Defendant  instructed that you act for in HCC 1965 of 1991 wherein the plaintiff had filed suit for injunction against the sale of L.R. No. 37/256/3 by the 1st defendant herein;

(b) The said property was charged by the plaintiff in HCCC 1965 of 1991 to the 1st Defendant herein.

(c) During your conduct of HCCC 1965 of 1991 on behalf of 1st Defendant herein, you advised the 1st Defendant that L.R No. 37/256/3 was not subject of HCCC 1965 of 1991 and that the 1st Defendant could proceed and sell the property;

(d) The 1st Defendant proceeded as per your advice thereby exposing the 1st Defendant to the Plaintiff’s claim in the present suit; and

(e) The said advice amounted to professional negligence.  The 1st Defendant shall rely on the principle of lis pendens, (which provides that a property that is subject of a suit, proceedings should not be sold.)

The 3rd party admits sending the letter dated 27/10/2099 on the request of the 1st defendant to it to confirm whether LR No. 37/256/3 was not subjectof HCCC 1965/1991. The 3rd party stated that the suit property was not a subject matter in HCCC 1965/1991.  That the plaintiff had not amended the plaint to include the property.  The 1st defendant has not demonstrated that the 3rd party was negligent in anyway arising from that reply.

In this case, the 1st defendant has failed to prove that the 3rd party was negligent.  The advice given to 1st defendant was factually correct as the suit property in this case was not the subject matter in Civil Suit No.1965/91.  It is the plaintiff Nyanja Holdings who claimed that there was an order of status quowhich was not proved with regard to the suit property in this suit.  I have perused the pleadings in File No.1965/91 and 251/2008 which were consolidated and the suit property was not a subject matter in those files.  Furthermore the plaintiff in his pleadings in this case has stated that it sold the suit property in exercise of its power of sale not an advice by 3rd party.  A party is bound by its own pleadings.  The 1st defendant has not tendered prove that the 3rd party gave it instructions to sell the property or that there was order of status quo restraining sale over the suit property.  I find that the 1st defendant has not proved the claim against the 3rd party to the required standards at all.

In Conclusion:

For the reasons I have given in this Judgment, I order as follows:-

1)I find that the suit property LR 37/256/3 Nairobi was sold unlawfully to Tripple Eight Investments (K) Limited and the sale was null and void.  I therefore order that the sale be set aside.

2)I order that the action by the 1st defendants to sell the suit property through private Treaty and transfer to the 2nd defendant Tripple Eight Investment Kenya Ltd through private treaty is set aside and the property shall be reinstated to the plaintiff Nyanja Holdings Limited.  The Land Registrar is ordered to make a rectification of the register by cancelling the transfer in favour of the Tripple  Eight Investments (Kenya) Limited.

3)The claim for general and exemplary damages was not proved.

4)The claim by 2nd defendant Tripple Eight Investments Limited for vacant possession of the suit property fails.

5) The 2nd Defendant, Tripple Eight Investment Limited is not entitled to the claim for rent from the suit premises and the prayer is therefore dismissed.  The claim for interest fails.

6) The claim for injunction by Tripple Eight Investment Limited against Nyanja Holdings Limited fails and is dismissed.

7) The claim by the 1st defendant Jamii Bora Bank Limited against the 3rd Party is dismissed with costs.

8) The Plaintiff Nyanja Holdings Limited is awarded costs of the suit to be paid by the 1st defendant Jamii Bora Bank Limited and Tripple Eight Investment (K) Limited.  Nyanja Holdings is entitled to the rent income from the suit property from the date of sale to date.  The rent which was ordered to be deposited in a joint interest earning account held by the advocates of the parties shall be released to the plaintiff, Nyanja Holdings Limited.

9) In view of the finding on the claims by the 2nd defendant, Tripple Eight Investment (Kenya) Limited, he will sort out his claim with 1st defendant.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 2ND DAY OF FEBRUARY 2022.

L.W. GITARI

JUDGE

2/2/2022

JUDGMENT READ OUT THROUGH VIRTUAL IN PRESENCE OF :-

MS NGONDE FOR TRIPPLE EIGHT INVESTMENT KENYA LIMITED - PLAINTIFF IN 993/02 AND 1506/00.

MS NZUKI FOR 1ST DEFENDANT -CITY FINANCE

MS GATUHI HOLDING BRIEF FOR MR. NJAGI FOR 3RD PARTY.

MR. ISINGOMA HOLDING BRIEF FOR MR. OJINJO FOR PLAINTIFFS

MS E. NYANJA – PRESENT.

L.W. GITARI

JUDGE

2/2/2022