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Elijah Kipngeno Arap Bii v. Samwel Mwehia Gitau & Kenya Commercial Bank

(2009) JELR 102507 (CA)

Court of Appeal  •  Civil Appeal 155 of 2006  •  10 Jul 2009  •  Kenya

John walter Onyango Otieno, Erastus Mwaniki Githinji, Joseph Gregory Nyamu



This is an appeal against the ruling of the superior court (M. G. Mugo, Ag. J – as she then was) delivered on 22nd September, 2004 allowing an application for summary judgment filed by Samuel Mwehia Gitau (1st respondent) against the appellant.

The dispute in the superior court related to land reference No. 209/9854 a leasehold property comprising of 0.1122 of a Hectare on which a dwelling house was erected (suit property). The appellant was originally the registered proprietor of the property which property was registered under the Registration of Titles Act (Cap 281 Laws of Kenya) (RTA). By a charge dated 18th April, 1986 and two later further charges the appellant charged the property to Kenya Commercial Bank Ltd. (bank) – 2nd respondent herein to secure an aggregate loan of Shs.3,405,000/= together with interest and other monies. The appellant subsequently defaulted in the repayment of the loan after which the bank gave a statutory notice of its intention to re…

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