Kenya's High Court sides with creditor in decade-long property dispute
The High Court of Kenya has ruled in favour of Synergy Industrial Credit Limited in a long-running dispute over property attachments. The decision overturns a Magistrate's earlier dismissal and allows the creditor to enforce a 2013 monetary judgment against Landmark Concepts Company Limited. The case centred on whether two properties could be seized despite claims of existing charges and third-party sales.
The dispute began in 2013 when Synergy secured a KSh 5.5 million judgment, including costs and interest, against Landmark Concepts and its co-respondents. A decade later, in 2023, Synergy sought to enforce the decree by applying for prohibitory orders over two properties registered under the 2nd respondent's name.
The respondents opposed the move, arguing that one property in Eldoret was already charged to ABC Bank, while the other in Pioneer/Ngeria had been sold to a third party. The Magistrate initially sided with the respondents, refusing to grant the prohibitory orders based on their explanations.
Synergy then appealed to the High Court, challenging the lack of evidence supporting the respondents' claims. The Court examined the case and found that no primary documents had been produced to prove a valid charge or completed sale. As a result, it ruled that both properties remained fully attachable.
In its judgment, the High Court emphasised that the burden of proof lies with the party claiming an encumbrance or overriding interest. It also reaffirmed that execution cannot be blocked by unverified claims of third-party rights. The appeal was allowed, the Magistrate's ruling set aside, and prohibitory orders were granted over both properties.
The decision aligns with the KEHC 16204 ruling, which clarified that unconfirmed registry entries do not guarantee indefeasible title under the Land Registration Act 2012. This means courts can disregard fraudulent or unverified registrations when enforcing judgments.
The ruling strengthens creditors' ability to enforce monetary judgments against properties where claims of encumbrances or sales lack proper documentation. It also reinforces the legal principle that execution measures cannot be defeated by unsubstantiated assertions. The case now allows Synergy to proceed with attaching the two properties in question.
