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ELCDismissedELC. Case No. 147 of 2018 (Formerly High Court Civil Case No. 8 of 2007)· [2026] KEELC 5943 (KLR)

Rose Wangari Ndegwa v Housing Finance Company of Kenya Ltd & 3 others

Environment and Land Court of Kenya
25 September 2026
41,958 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~168 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa dismissed a borrower's challenge to a bank's mortgage sale, ordering her to vacate the Mombasa property within 90 days.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of L.R. No. 3160/1/MN (C.R. 18132), Mombasa, sued Housing Finance Company of Kenya Ltd, the purchasers Francis and Tabitha Mwanzia, and the Registrar of Titles, challenging a Kshs. 2,000,000 mortgage secured by a 1993 Charge and the 2007 private treaty sale of the premises for Kshs. 8,500,000. She sought declarations that the interest rates and the Charge were unlawful and void, that the chargee had no statutory power of sale, accounts, an injunction, damages, cancellation of the 2007 Transfer and Charge, and re-conveyance. The court framed nine issues. It held the Charge valid: it was properly endorsed by Bowyer Mahihu & Co. (successor firm), and the Plaintiff failed to prove the Section 69(1) Transfer of Property Act certificate false, never calling the certifying advocate. On interest, applying the Supreme Court's decision in Stanbic Bank v Santowels, the 19% cap in Gazette Notice 1617 of 1990 had been revoked in 1991, before the 1993 facility, so the 21% contractual rate with notice-based variation was lawful; the IRAC recalculation was of no probative value. The Plaintiff's own letters from 1994 to 2000 admitted arrears, establishing substantial default. Valid statutory notices (1997 and 2006) were served and acknowledged, so the statutory power of sale accrued. The private treaty sale was lawful under Section 69(1); the price exceeded the forced sale value and lis pendens did not bar it absent a restraining order, the Plaintiff's earlier injunction having been dismissed. The suit was dismissed; the 2nd and 3rd Defendants were granted vacant possession, the Plaintiff ordered to vacate within ninety days under Section 152E of the Land Act, failing which eviction could follow, with costs to the 1st, 2nd and 3rd Defendants jointly and severally.

Key legal issues

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01

Validity of the 1993 Charge

Holding

Charge valid and enforceable

Reasoning

The Charge was drawn by Bowyer Mahihu & Co., successor to Bryson, Inamdar & Bowyer, with name and address endorsed; omission of 'Drawn by' is not fatal per Anjanaben Anil Shah. The Plaintiff admitted signing before Sally Mahihu and enjoying the full loan benefit. She failed to prove the Section 69(1) certificate false, never calling the still-practising advocate; burden under Sections 107-109 Evidence Act lay on her.

p. 128
02

Lawfulness of interest rates

Holding

Interest rates lawful and contractual

Reasoning

The 19% cap in Gazette Notice 1617 of 1990 was revoked in July 1991, two years before the facility; per Stanbic Bank v Santowels no cap applied. Clause 4 of the Charge permitted variation on notice, and variation letters were issued. The IRAC recalculation applying 19% was of no probative value, being partisan and based on a non-existent cap.

p. 134
03

Default under the mortgage

Holding

Plaintiff in substantial default

Reasoning

The Plaintiff's own letters from 1994 to 2000 admitted arrears and sought indulgence; account statements showed arrears escalating to Kshs. 5,784,903.45 by the March 2006 statutory notice. Her claim of pre-payment was inconsistent with these admissions, which the court held bound her by estoppel.

p. 136
04

Statutory notices and accrual of power of sale

Holding

Valid notices served; power of sale accrued

Reasoning

Statutory notices of 23rd May 1997, 7th August 1997 (90 days, satisfying the three-month requirement) and 24th March 2006 were issued and acknowledged in writing by the Plaintiff. Following Trust Bank v Kotedia and Trust Bank v Eros Chemists, the power of sale had accrued and was exercisable.

p. 138
05

Lawfulness of private treaty sale and undervalue

Holding

Sale lawful and not at gross undervalue

Reasoning

Section 69(1) Transfer of Property Act permitted sale by private contract; per Francis Mogaka Maranya the earlier auction instructions did not bar private treaty. The sale price of Kshs. 8,500,000 exceeded Tysons' forced sale value of Kshs. 8,000,000 and fell within a reasonable range of open market value, satisfying the mortgagee's duty per KCB v Osede.

p. 141
06

Lis pendens

Holding

Doctrine not breached

Reasoning

Per Co-operative Bank v Kangethe Njuguna and Bank of Africa v TSS Investment, pendency of a suit does not fetter statutory power of sale absent an express restraining order. The Plaintiff's earlier injunction application in HCCC No. 83 of 2002 was dismissed by Sergon J on 12th February 2007, and no injunction issued in this suit before the 30th April 2007 sale.

p. 142

Legal principles established

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  • Gazette Notice No. 1617 of 1990 capping interest at 19% was revoked by Gazette Notice No. 3348 of 23rd July 1991; facilities advanced thereafter were not subject to any statutory interest cap
  • A charge bearing the name and address of the drawing firm but omitting the words 'Drawn by' is validly endorsed and does not offend Sections 34 and 35 of the Advocates Act
  • The burden lies on a chargor alleging that the Section 69(1) explanation certificate is false to prove it, including by calling the certifying advocate
  • Lis pendens does not operate as an automatic injunction; a chargee may exercise statutory power of sale pending suit unless a court order restrains the sale
  • A mortgagee may sell by private treaty notwithstanding an earlier election to sell by public auction; there is no estoppel against the statute
  • A mortgagee owes a duty to take reasonable precautions to obtain the true market value but is not a trustee of the power of sale for the mortgagor

Court orders

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  1. 1.The Plaintiff's claim through the Amended Plaint dated 4th July, 2007 found to lack merit and dismissed
  2. 2.The 2nd and 3rd Defendants granted vacant possession of Title Number C.R. 18132, Plot No. L.R. No. 3160/1/MN, Mombasa
  3. 3.Plaintiff ordered to vacate and deliver vacant possession within NINETY (90) DAYS from the date of Judgment (Section 152E, Land Act)
  4. 4.In default of vacating within 90 days, the 2nd and 3rd Defendants at liberty to lawfully evict the Plaintiff
  5. 5.Costs of the suit borne by the Plaintiff, payable to the 1st, 2nd and 3rd Defendants jointly and severally
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over title, charge and sale of land (Article 162(2)(b) Constitution; ELC Act) - suit transferred from the High Court (HCCC No. 8 of 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rose Wangari Ndegwa v Housing Finance Company of Kenya Ltd & 3 others", Case Analysis (2026). ELC. Case No. 147 of 2018 (Formerly High Court Civil Case No. 8 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5943/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.