Karungu v Gichiri & another (Enviromental and Land Originating Summons E002 of 2024) [2026] KEELC 4549 (KLR)

determination of the Originating Summons dated 2nd February 2024. 3. Upon deposit of the title of Land Reference Number JUJA/JUJA EAST BLOCK 1/1355, the 2nd Respondent be struck out from these proceedings. 4. The costs of this application be provided for. 2) The Application is based on the following grounds: 1. The 1st Respondent charged the title of Land Reference Number JUJA/JUJA EAST BLOCK 1/1355 (the "Suit Property") to the 2nd Respondent for the consideration of Kenya Shillings Three Hundred Thousand (Kshs. 300,000) on 15/12/1997. The 2nd Respondent's sole interest in the Suit Property was as a chargee. 2. The 2nd Respondent no longer has an interest in the Suit Property. The 2nd Respondent is however still holding the original title to the Suit Property. 3. There is no collusion between the 2 nd Respondent and either the Applicant or the 1st Respondent. 4. The 2nd Respondent is prepared to release the title of the Suit Property into Court or to dispose of it as the Court directs. 5. If the title to the property is deposited in Court, the 2 nd Respondent will no longer be a necessary party in these proceedings. ELCLOS NO. E002 OF 2024 2|Page

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6. The most efficient use of judicial resources in the circumstances of this case is for the 2 nd Respondent to be allowed to deposit the title of the Suit Property in Court and for the Court to determine the rightful owner of the Suit Property between the Applicant and the 1 st Respondent. 3) At the same time the Application is supported by Affidavit of Dr. Davidson Mwaisaka, the Head of Legal for Kenya and East Africa at the 2nd Respondent, sworn on 14/10/2024. The Deponent deposes that by way of a Charge 15/12/1997 and registered on 19/01/1998, dated the 1st Respondent charged the parcel of land known as Land Reference Number JUJA/JUJA EAST BLOCK 1/1355 to the 2 nd Respondent to secure a sum of Kes. 300,000. It is averred that the 2nd Respondent’s singular interest in the suit property was that of a chargee, and while it remains in possession of the original certificate of title, its interest in the suit property has since ceased. The Deponent affirms that the 2nd Respondent claims no interest in the subject matter and stands ready to deposit the said original title into Court or dispose of it as the Honourable Court may direct. Furthermore, the Deponent deposes that there is no collusion between the 2nd Respondent and either the Applicant or the 1st Respondent herein, and prays that the application be allowed to facilitate the determination of the ELCLOS NO. E002 OF 2024 3|Page

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rightful ownership of the property between the contesting parties. 4) The application is unopposed neither the Applicant nor the 1st Respondent filed any response. 5) When the parties appeared in Court on 13/05/2026 the Court not being satisfied that the 1st Respondent was properly served directed that the 2nd Respondent serves her by way of substituted service, which was done and she was served by the Daily Nation Newspaper Advertisement of 29/01/2026. 6) The Applicant thus seeks to have the Court to become a custodian of title of a litigant who has not entered appearance in the Originating Summons nor the Interpleader Application. The Applicant’s case is straightforward where the Applicant states that by way of a Charge dated 15/12/1997 and registered on 19/01/1998, the 1st Respondent charged the Suit Property to the 2 nd Respondent to secure a financial facility of Kesh 300,000. The 2 nd Respondent’s interest in the Suit Property was strictly that of a chargee. Dr. Mwaisaka affirms that the debt has since been managed and the 2nd Respondent's interest has completely ceased. However, the 2nd Respondent remains in physical possession of the original Certificate of Title. Facing a dispute between the main Applicant and the 1 st Respondent regarding the underlying ownership of the property, and asserting that there is absolutely no collusion between itself and either party, the 2nd Respondent seeks to wash its hands ELCLOS NO. E002 OF 2024 4|Page

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of the matter, deposit the title into the custody of the Court, and exit the litigation. 7) It is a matter of record that this application is entirely unopposed. Neither the substantive Applicant nor the 1 st Respondent filed any Grounds of Opposition or Replying Affidavits. When the parties appeared in Court on 13/05/2026, this Court, not being satisfied that the 1 st Respondent was properly served, directed that the 2 nd Respondent serve her by way of substituted service. This was duly executed via a public advertisement in the Daily Nation newspaper on 29/01/2026. Despite this wide-reaching service, the 1st Respondent has failed to enter an appearance or file any response. 8) In the face of such silence, an Applicant might temptingly assume that the orders sought are theirs for the taking. However, our jurisprudence firmly establishes that an unopposed application does not translate to an automatic grant of the prayers sought. The Court owes a residual, nondelegable duty to the administration of justice to independently evaluate the application on its merits and verify that the legal thresholds have been fully satisfied. As was famously observed by the Supreme Court in Petition (APPLICATION) No. 17 (E017) OF 2020: "… [10] Be that as it may, as a Court of Law, we have a duty in principle to look at what the application is about and what it seeks. It is not ELCLOS NO. E002 OF 2024 5|Page

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automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. It behooves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted. The Court is under a duty to look at the application and without making any inferences on facts point out any points of law, such as any jurisdictional impediment, which might render the application a non-starter." 9) The 2nd Respondent relies heavily on Order 34, which governs interpleader proceedings. Structurally, an interpleader is designed for a person who holds property or funds in which they claim no interest, but which faces competing claims from two or more distinct parties. The neutral stakeholder seeks the protection of the Court to avoid being dragged into the crossfire of other people's wars. While the 2nd Respondent meets the classic threshold of having no personal claim to the title deed, a glaring legal hurdle arises from the specifics of this suit. The main Applicant and the 1st Respondent, the actual combatants who are supposed to fight over the property have not actively engaged. The 1st Respondent, in particular, has failed to file any response to either the main Originating Summons or this Chamber Summons. ELCLOS NO. E002 OF 2024 6|Page

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10) This brings the Court to a fundamental crossroad regarding its structural purpose. The 2 nd Respondent expects this Court to take custody of a title deed belonging to a private citizen who has ignored the Court process entirely. If this Court allows the title to be deposited into its registry under these circumstances, it risks transforming from a temple of justice into a commercial safe-deposit box. The judiciary is not a storage unit; it is an active engine of conflict resolution. In Bonaventure Ngala & Others v Republic [2019] eKLR, the Court forcefully reiterated the boundaries of judicial storage, noting: "The Court is established for the administration of justice and the active resolution of disputes between parties. It cannot be converted into a warehouse or a store for documents belonging to litigants who choose not to prosecute their grievances. To hold otherwise would clog the judicial registries and subvert the true constitutional mandate of the Courts." 11) The overarching role of this Court is dispute resolution under Article 159 of the Constitution. For a dispute to be resolved, there must be active competing claims before the Court. Where one party remains entirely silent and refuses to enter the arena, the proper remedy is for the active parties to move the Court to set down the main suit for formal proof ELCLOS NO. E002 OF 2024 7|Page

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or default judgment, rather than seeking interim orders to deposit items into judicial storage indefinitely. 12) While the Court appreciates the 2 nd Respondent's commercial desire to clear its archives and exit the suit, the Court refuses to act as a placeholder registry for a title deed where the primary dispute is not being actively litigated by the owner. The application, while well-intentioned, fails on its merits because it seeks to place a document in judicial storage without an active, adversarial context that justifies immediate custody. 13) Under the Civil Procedure Act, Kenyan Courts only hold property as security for due performance of a decree such as when there is a, pending appeal or as formal exhibits in a live dispute. Courts do not possess a statutory mandate to hold discharged deeds belonging to absent third parties. The Deputy Registrar's duty regarding safe custody is strictly limited to active Court files, exhibits, and formal decretal funds. Accepting a physical title deed creates an administrative liability for the Judiciary regarding loss, damage, or fraud, with no mechanism to ever offload it. 14) In situation such as the one at hand where there is no active underlying suit regarding ownership, the Court has no continuing jurisdiction to manage the client's personal property 15) Given the foregoing the Court dismisses the request to deposit the title in the registry. I do note that the bank has ELCLOS NO. E002 OF 2024 8|Page

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fulfilled its duty of care via public advertisement, and I therefore make the following orders: i) The application dated 14/10/2024 seeking leave to deposit the original title deed for Land Reference Number JUJA/JUJA EAST BLOCK 1/1355 into Court and to subsequently strike out the 2 nd Respondent be and is hereby dismissed. ii) The Bank can transfer to the Unclaimed Financial Assets Authority (UFAA) the title since the title deed and its underlying interest constitute an unclaimed asset after holding the title documents as an inactive bailee; or iii) The Bank can register and relinquish to the Land Registrar the title by taking the final conveyancing step and submitting the executed Discharge of Charge directly to the relevant Ministry of Lands registry. iv) To facilitate step (ii) above this Court will waive the statutory registration fees as is statutorily required since the bank has fulfilled its duty. v) The Land Registrar during registration is directed by this Court to officially note the discharge on the encumbrance section of the register and the Registrar shall retain the title deed in the state's statutory custody, where the owner can track it ELCLOS NO. E002 OF 2024 9|Page

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down via an official land search whenever they resurface. 16) It is so ordered. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 14TH DAY OF JULY, 2026. …………………… MOGENI J JUDGE In the presence of: Mr. Muthomi for the Plaintiff Mr. Muriithi holding brief for Mr. Ondieki for the 2 nd Respondent Mr. Melita - Court Assistant. …………………… MOGENI J JUDGE ELCLOS NO. E002 OF 2024 10 | P a g e

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