Introduction
1. Vide a Chamber Summons application dated 30 th April 2026, the Applicant herein, Power Group of Companies Limited, sought, and was on 13 th May 2026, granted leave pursuant to Section 56 (2) of the Kenya Deposit Insurance Act Cap 487C Laws of Kenya to institute this suit as against the Respondent, Post Bank Credit Limited (in liquidation)
2. The suit, vide an Originating Summons dated 16 th December 2025 was served upon the Respondent who did not enter appearance or file any response.
3. Upon being satisfied that the Respondent had been duly served, the matter was certified ready for hearing. Counsel for the applicant sought and was allowed to converse the matter by way of written submissions.
The Originating Summons
4. The Applicant sought the following orders:
a) That the Respondent do execute the Discharge of Charge and releases the original title in respect of Title No Kwale/Msambweni ‘‘A’’/2913 and Title No Kwale/Msambweni ‘‘A’’/2924 in favour of the applicant within 30 days.
b) That in default of execution within the time prescribed, the Deputy Registrar to execute the said Transfer Forms in place of the Respondent.
c) That costs of this suit be provided for.
5. The originating summons was supported by the supporting affidavit sworn by Hailu Asfaw Mengesha, the Director of the Applicant company herein. In summary, the applicant’s case is that, Parcel Nos Kwale/Msambweni "A"/2913 and Kwale/Msambweni "A"/2924 were originally owned by Cyrus Shakhalaga Khwa Jirongo and were charged to Postbank Credit Limited. Mr Jirongo was unable to meet his financial obligations to the bank and the properties among other were offered for sale to third parties. On or about the 13 th January 2009, Power Group through its representatives negotiated for sale of the two titles among others from the liquidator of the Respondent for a sum of Kshs 49,000,000. The agreement for sale of the two parcels (alongside other properties) was entered between the applicant and Mr Jirongo . Postbank agreed to accept a total settlement of Kshs. 49,000,000 for the release/discharge of eight charged properties.
6. On January 15–16, 2009, full payment of Kshs. 49,000,000 was delivered via banker's cheque to Postbank Credit Limited through Wandabwa Advocates and the Respondent through its Liquidation Agent acknowledged final settlement of the outstanding debt and released the original title documents of all the 5 titles purchased by the applicant which included the two titles subject to this suit. The too released the transfer documents but omitted the D ischarge of charge document .
7. He deposed that despite multiple follow-ups and demand letters sent between 2010 and 2023, Postbank Credit Limited has failed, neglected, or refused to execute and release the Discharge of Charge documents hence the suit.
Submissions by the Applicant
8. Applicant’s Counsel filed written submissions. She identified the following issues for determination; -
i. Whether the Respondent is under a legal obligation to Discharge the Charge and release the Original Title documents.
ii. Whether the Honourable court should compel the Respondent to execute the discharge of charge and release the title documents or in default authorise an appropriate officer of the court to execute the requisite documents.
9. On the 1 st issue, counsel submitted that a charge is merely a security for payment of a debt and once that secured debt is fully paid, the chargee’s interest in the security is extinguished. There is therefore no legal basis for maintenance of the charge or continued retention of the title documents. Counsel referred the court to the provision of section 85(1) of the Land Act, 2012, which requires a chargee to execute a discharge of charge once the underlying debt is fully settled. He argues that the Respondent has a statutory and contractual duty to discharge the suit properties and release the title document to enable the registration of the Applicant as proprietor
10. Counsel also gave refence to the case of Pius Kimaiyo Langat v Cooperative Bank of Kenya [2022] KEHC 13542 (KLR). Where the court held that a charge ceases to serve any lawful purpose once the secured debt has been redeemed and that a charge cannot continue to retain title documents after redemption. Counsel surmised that the Respondent’s liquidation does not extinguish its statutory obligation but only transfer those obligations to the liquidator who is responsible for conducting the affairs of the institution including executing documents necessary to discharge satisfied securities.
11. As regards the 2 nd issue, counsel submitted that Article 40 of the Constitution of Kenya guarantee every person the Right to acquire and own property which right would be rendered illusory if the Applicant were indefinitely denied registration despite having fulfilled every obligation required of it. Counsel argued that the applicant has acquired equitable rights over the suit properties and should not suffer prejudice due to administrative failures on the part of the respondent. He appealed to the equitable doctrine that equity regards as done that which ought to be done and urged the court to exercise its inherent jurisdiction and issue the orders sought.
12. Counsel sought refuge to the provision of Section 98 of the Civil Procedure Act, which grant the court authority to nominate any other suitable person to execute documents on behalf of them that declines to execute. On this counsel gave refence to Charles Mukoma Kimaru versus Johnstone Muchomba Kaguyu [2020] KEELC 107 (KLR)
13. In the end, counsel the court to accept the Applicant’s affidavit evidence as truthful arguing that the Respondent did not file any Affidavit to controvert the same on this, he referred the court to Kenya Power and Lighting Company Limited versus Nathan Karanja Gachoka & Another [2016] KEHC 1362(KLR)
Analysis and determination
Issues for determination
14. The Court has carefully read and considered the pleadings by the Applicant, the documents filed therewith, written submissions, authorities cited and the relevant provisions of law and distills that the salient issues for determination are:
(i) Whether the Respondent is under a legal obligation to Discharge the Charge and release the Original Title documents.
(ii) Whether the Honourable court should compel the Respondent to execute the discharge of charge and release the title documents or in default authorise an appropriate officer of the court to execute the requisite documents.
(iii) Who should bear the costs?
15. To start with, it is important to appreciate that this court has a duty to interrogate the affidavit evidence of the applicant and make a determination as to whether the same meets the required threshold for grant of the prayers sought, despite the fact that there is no contrary evidence to controvert the same. This duty was restated in Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR, where the Supreme Court of Kenya stated that;
“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 automatic that for any unopposed application, the Court will as a matter of cause grants the sought orders. It behoves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted ”.
16. Similarly, in Gichinga Kibutha vs Caroline Nduku [2018] eKLR, where the Court held as follows;
“The hearing referred to above is the one commonly known as “Formal proof”. The Civil Procedure Rules do not define “Formal Proof”. Black’s Law Dictionary defines “Formal” as including “rules established by an institution according to certain processes”. This particular hearing is for the claimant to proof his claim. It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”
17. This court is of a similar view that the evidence must be analysed to determine whether the same meets the required threshold for grant of the prayers sought. It therefore behoves this Court to carefully scrutinise and evaluate the evidence on record to determine whether the Applicant’s claim has been established to the requisite standard.
18. In its 1 st prayer, the Applicant seeks not only the Discharge of charge in respect to Title No Kwale/Msambweni ‘‘A’’/2913 and Title No Kwale/Msambweni ‘‘A’’/2924, but also releases the original title of the two properties. Its evidence as expressly set out in paragraph 10 of the Affidavit in support of the Originating Summons however speaks otherwise as regard the party in possession of the original title documents. Quoting verbatim, Hailu Asfaw Mengesha, the director of the applicant swears; -
‘’10. THAT the Respondent, through its Liquidation Agent, responded to our Advocate’s letter confirming final payment of the outstanding debt. The Respondent released the original five titles including those of the suit premises as well as the transfer documents but left out the duly executed Discharge of Charge document. Annexed hereto and marked HAM-5 is the Respondent’s letter dated 19 th February 2009’’
19. The mentioned annexure was attached and forms part of the applicant’s evidence. The annexture was a cover letter addressed to Ogola Okello & Co Advocates the Advocate for the applicant forwarding original title documents of 5 properties outlined therein. Among them are the 2 suit properties, No Kwale/Msambweni ‘‘A’’/2913 and Title No Kwale/Msambweni ‘‘A’’/2924. Clearly therefore the Original Title documents for the suit land were already forwarded to the applicant through its Advocate and a prayer for release of the same cannot therefore issue.
20. Section 85 of the Land Act provides; -
‘‘85. Right to discharge
1. (1) Subject to the provisions of this section, the chargor shall, upon payment of all money secured by a charge and the performance of all other conditions and obligations under the charge, be entitled to discharge the charge at any time before the charged land has been sold by the chargee or a receiver under the power of sale.
(2)Any agreement or provision in a charge instrument that is inconsistent with subsection (1) shall be void to the extent that it—(a)purports to deprive the chargor of the right to discharge;(b)seeks to fetter the exercise of this right; or(c)stipulates for a collateral advantage that is unfair and unconscionable or inconsistent with the right to discharge.’’
21. The purpose of a charge is simply and purely to secure the financial facility advanced to the Chargor. Once the financial facility if fully settled, a charge ceases to be of any value at all hence the above provision for discharge. Indeed, am in agreement with the counsel that a charge ceases to serve any lawful purpose once the secured debt had been paid by the applicant and that the Respondent’s liquidation does not extinguish its statutory obligation to discharge the suit properties. If anything, those obligations were only reposed upon the liquidator who is responsible for conducting the affairs of the Respondent including executing documents necessary to discharge the redeemed securities. It is in recognition of this responsibility that letter of 19 th February 2009 forwarding the original title deeds was authored by the Liquidation Agent. Forwarding the original titles alone, without doing more and in particular discharging the suit properties, does not effectuate registration of the purchased properties into the Applicant’s name. The applicant Originating Summons consequently succeeds in the following terms; -
a. That an order be and is hereby issued compelling the Respondent to execute a Discharge of Charge in respect to parcel No. Kwale/Msambweni ‘‘A’’/2913 and Title No Kwale/Msambweni ‘‘A’’/2924 within 30 days of extraction of the decree.
b. In default, the Deputy registrar of this court is hereby authorized to execute the Discharge of Charge in respect to Kwale/Msambweni ‘‘A’’/2913 and Title No Kwale/Msambweni ‘‘A’’/2924, as well as all other consequential instruments pursuant to section 98 of the Civil Procedure Act to effectuate registration of the suit properties Kwale/Msambweni ‘‘A’’/2913 and Title No Kwale/Msambweni ‘‘A’’/2924 into the Applicant’s name.
c. The suit being undefended, there shall be no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS17TH DAY OF SEPTEMBER 2026.
HON. E.G NDERITU LJ
ELC KWALE
In the presence of: - Ms Mulekye for the Applicant
Ms Halima C/A
2ELCLOS EO15/2026
1. Vide a Chamber Summons application dated 30 th April 2026, the Applicant herein, Power Group of Companies Limited, sought, and was on 13 th May 2026, granted leave pursuant to Section 56 (2) of the Kenya Deposit Insurance Act Cap 487C Laws of Kenya to institute this suit as against the Respondent, Post Bank Credit Limited (in liquidation)
2. The suit, vide an Originating Summons dated 16 th December 2025 was served upon the Respondent who did not enter appearance or file any response.
3. Upon being satisfied that the Respondent had been duly served, the matter was certified ready for hearing. Counsel for the applicant sought and was allowed to converse the matter by way of written submissions.
The Originating Summons
4. The Applicant sought the following orders:
a) That the Respondent do execute the Discharge of Charge and releases the original title in respect of Title No Kwale/Msambweni ‘‘A’’/2913 and Title No Kwale/Msambweni ‘‘A’’/2924 in favour of the applicant within 30 days.
b) That in default of execution within the time prescribed, the Deputy Registrar to execute the said Transfer Forms in place of the Respondent.
c) That costs of this suit be provided for.
5. The originating summons was supported by the supporting affidavit sworn by Hailu Asfaw Mengesha, the Director of the Applicant company herein. In summary, the applicant’s case is that, Parcel Nos Kwale/Msambweni "A"/2913 and Kwale/Msambweni "A"/2924 were originally owned by Cyrus Shakhalaga Khwa Jirongo and were charged to Postbank Credit Limited. Mr Jirongo was unable to meet his financial obligations to the bank and the properties among other were offered for sale to third parties. On or about the 13 th January 2009, Power Group through its representatives negotiated for sale of the two titles among others from the liquidator of the Respondent for a sum of Kshs 49,000,000. The agreement for sale of the two parcels (alongside other properties) was entered between the applicant and Mr Jirongo . Postbank agreed to accept a total settlement of Kshs. 49,000,000 for the release/discharge of eight charged properties.
6. On January 15–16, 2009, full payment of Kshs. 49,000,000 was delivered via banker's cheque to Postbank Credit Limited through Wandabwa Advocates and the Respondent through its Liquidation Agent acknowledged final settlement of the outstanding debt and released the original title documents of all the 5 titles purchased by the applicant which included the two titles subject to this suit. The too released the transfer documents but omitted the D ischarge of charge document .
7. He deposed that despite multiple follow-ups and demand letters sent between 2010 and 2023, Postbank Credit Limited has failed, neglected, or refused to execute and release the Discharge of Charge documents hence the suit.
Submissions by the Applicant
8. Applicant’s Counsel filed written submissions. She identified the following issues for determination; -
i. Whether the Respondent is under a legal obligation to Discharge the Charge and release the Original Title documents.
ii. Whether the Honourable court should compel the Respondent to execute the discharge of charge and release the title documents or in default authorise an appropriate officer of the court to execute the requisite documents.
9. On the 1 st issue, counsel submitted that a charge is merely a security for payment of a debt and once that secured debt is fully paid, the chargee’s interest in the security is extinguished. There is therefore no legal basis for maintenance of the charge or continued retention of the title documents. Counsel referred the court to the provision of section 85(1) of the Land Act, 2012, which requires a chargee to execute a discharge of charge once the underlying debt is fully settled. He argues that the Respondent has a statutory and contractual duty to discharge the suit properties and release the title document to enable the registration of the Applicant as proprietor
10. Counsel also gave refence to the case of Pius Kimaiyo Langat v Cooperative Bank of Kenya [2022] KEHC 13542 (KLR). Where the court held that a charge ceases to serve any lawful purpose once the secured debt has been redeemed and that a charge cannot continue to retain title documents after redemption. Counsel surmised that the Respondent’s liquidation does not extinguish its statutory obligation but only transfer those obligations to the liquidator who is responsible for conducting the affairs of the institution including executing documents necessary to discharge satisfied securities.
11. As regards the 2 nd issue, counsel submitted that Article 40 of the Constitution of Kenya guarantee every person the Right to acquire and own property which right would be rendered illusory if the Applicant were indefinitely denied registration despite having fulfilled every obligation required of it. Counsel argued that the applicant has acquired equitable rights over the suit properties and should not suffer prejudice due to administrative failures on the part of the respondent. He appealed to the equitable doctrine that equity regards as done that which ought to be done and urged the court to exercise its inherent jurisdiction and issue the orders sought.
12. Counsel sought refuge to the provision of Section 98 of the Civil Procedure Act, which grant the court authority to nominate any other suitable person to execute documents on behalf of them that declines to execute. On this counsel gave refence to Charles Mukoma Kimaru versus Johnstone Muchomba Kaguyu [2020] KEELC 107 (KLR)
13. In the end, counsel the court to accept the Applicant’s affidavit evidence as truthful arguing that the Respondent did not file any Affidavit to controvert the same on this, he referred the court to Kenya Power and Lighting Company Limited versus Nathan Karanja Gachoka & Another [2016] KEHC 1362(KLR)
Analysis and determination
Issues for determination
14. The Court has carefully read and considered the pleadings by the Applicant, the documents filed therewith, written submissions, authorities cited and the relevant provisions of law and distills that the salient issues for determination are:
(i) Whether the Respondent is under a legal obligation to Discharge the Charge and release the Original Title documents.
(ii) Whether the Honourable court should compel the Respondent to execute the discharge of charge and release the title documents or in default authorise an appropriate officer of the court to execute the requisite documents.
(iii) Who should bear the costs?
15. To start with, it is important to appreciate that this court has a duty to interrogate the affidavit evidence of the applicant and make a determination as to whether the same meets the required threshold for grant of the prayers sought, despite the fact that there is no contrary evidence to controvert the same. This duty was restated in Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR, where the Supreme Court of Kenya stated that;
“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 automatic that for any unopposed application, the Court will as a matter of cause grants the sought orders. It behoves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted ”.
16. Similarly, in Gichinga Kibutha vs Caroline Nduku [2018] eKLR, where the Court held as follows;
“The hearing referred to above is the one commonly known as “Formal proof”. The Civil Procedure Rules do not define “Formal Proof”. Black’s Law Dictionary defines “Formal” as including “rules established by an institution according to certain processes”. This particular hearing is for the claimant to proof his claim. It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”
17. This court is of a similar view that the evidence must be analysed to determine whether the same meets the required threshold for grant of the prayers sought. It therefore behoves this Court to carefully scrutinise and evaluate the evidence on record to determine whether the Applicant’s claim has been established to the requisite standard.
18. In its 1 st prayer, the Applicant seeks not only the Discharge of charge in respect to Title No Kwale/Msambweni ‘‘A’’/2913 and Title No Kwale/Msambweni ‘‘A’’/2924, but also releases the original title of the two properties. Its evidence as expressly set out in paragraph 10 of the Affidavit in support of the Originating Summons however speaks otherwise as regard the party in possession of the original title documents. Quoting verbatim, Hailu Asfaw Mengesha, the director of the applicant swears; -
‘’10. THAT the Respondent, through its Liquidation Agent, responded to our Advocate’s letter confirming final payment of the outstanding debt. The Respondent released the original five titles including those of the suit premises as well as the transfer documents but left out the duly executed Discharge of Charge document. Annexed hereto and marked HAM-5 is the Respondent’s letter dated 19 th February 2009’’
19. The mentioned annexure was attached and forms part of the applicant’s evidence. The annexture was a cover letter addressed to Ogola Okello & Co Advocates the Advocate for the applicant forwarding original title documents of 5 properties outlined therein. Among them are the 2 suit properties, No Kwale/Msambweni ‘‘A’’/2913 and Title No Kwale/Msambweni ‘‘A’’/2924. Clearly therefore the Original Title documents for the suit land were already forwarded to the applicant through its Advocate and a prayer for release of the same cannot therefore issue.
20. Section 85 of the Land Act provides; -
‘‘85. Right to discharge
1. (1) Subject to the provisions of this section, the chargor shall, upon payment of all money secured by a charge and the performance of all other conditions and obligations under the charge, be entitled to discharge the charge at any time before the charged land has been sold by the chargee or a receiver under the power of sale.
(2)Any agreement or provision in a charge instrument that is inconsistent with subsection (1) shall be void to the extent that it—(a)purports to deprive the chargor of the right to discharge;(b)seeks to fetter the exercise of this right; or(c)stipulates for a collateral advantage that is unfair and unconscionable or inconsistent with the right to discharge.’’
21. The purpose of a charge is simply and purely to secure the financial facility advanced to the Chargor. Once the financial facility if fully settled, a charge ceases to be of any value at all hence the above provision for discharge. Indeed, am in agreement with the counsel that a charge ceases to serve any lawful purpose once the secured debt had been paid by the applicant and that the Respondent’s liquidation does not extinguish its statutory obligation to discharge the suit properties. If anything, those obligations were only reposed upon the liquidator who is responsible for conducting the affairs of the Respondent including executing documents necessary to discharge the redeemed securities. It is in recognition of this responsibility that letter of 19 th February 2009 forwarding the original title deeds was authored by the Liquidation Agent. Forwarding the original titles alone, without doing more and in particular discharging the suit properties, does not effectuate registration of the purchased properties into the Applicant’s name. The applicant Originating Summons consequently succeeds in the following terms; -
a. That an order be and is hereby issued compelling the Respondent to execute a Discharge of Charge in respect to parcel No. Kwale/Msambweni ‘‘A’’/2913 and Title No Kwale/Msambweni ‘‘A’’/2924 within 30 days of extraction of the decree.
b. In default, the Deputy registrar of this court is hereby authorized to execute the Discharge of Charge in respect to Kwale/Msambweni ‘‘A’’/2913 and Title No Kwale/Msambweni ‘‘A’’/2924, as well as all other consequential instruments pursuant to section 98 of the Civil Procedure Act to effectuate registration of the suit properties Kwale/Msambweni ‘‘A’’/2913 and Title No Kwale/Msambweni ‘‘A’’/2924 into the Applicant’s name.
c. The suit being undefended, there shall be no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS17TH DAY OF SEPTEMBER 2026.
HON. E.G NDERITU LJ
ELC KWALE
In the presence of: - Ms Mulekye for the Applicant
Ms Halima C/A
2ELCLOS EO15/2026