Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others [2018] KECA 768 (KLR)
- Court
- Court of Appeal
- Case number
- 768
- Citation
- [2018] KECA 768 (KLR)
- Decided
- 8 February 2018
The appeal and cross appeal succeed, and the judgment of the High Court is set aside. The 1st respondent's suit is dismissed with costs.
Facts
In 1995, Commercial Bank Limited advanced a loan of Kshs.2,500,000 to Kaniki Karisa Kaniki, secured by a mortgage. In 1999, the bank and Giro Commercial Bank merged, and Kaniki Karisa Kaniki defaulted on payments. The bank filed a suit for recovery, which was set aside. In 2005, the bank sold the property to the appellant, who subsequently challenged the sale.
Issues
- Validity of the sale of the property
- Validity of the mortgage
Reasoning
The court found the sale of the property to be valid and the mortgage to be valid, as the 1st respondent had received benefits under the mortgage and could not challenge its validity.
Outcome
Appeal successful, judgment of the High Court set aside
Orders
- The 1st respondent's suit is dismissed with costs
Remedies
- The 1st respondent's suit is dismissed with costs
Authorities cited
Legislation (2)
- Section 69B (2)(b) of the ITPA
- Transfer of Property Act, 1925 (England)
Cases cited (3)
- Mwaniki wa Ndegwa vs. National Bank of Kenya Ltd & Another [2016] eKLR
- Noorbegum Fazal (suing as a holder of power of attorney in favour of Nadra Hussein Fazal) vs. Diamond Trust Bank [2015] eKLR
- Lord Waring vs. London and Manchester Co. Ltd. [1935] Ch 310
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