Authored By: EUVIE MORAA OCHUKU
Court: High Court at Nairobi (Milimani)
Judgment date: 6th November 2025
Synergy Industrial Credit Limited……Appellants Versus
Landmark Concepts Company Limited……Respondents
FACTS
Synergy Industrial Credit Limited obtained a partial monetary judgment in 2013 against Landmark Concepts Company Limited and its co-respondents for KSh 5.5 million plus costs and interest. Ten years later, in 2023, Synergy sought to enforce the decree by applying for prohibitory orders over two properties registered in the name of the 2nd respondent:
- Eldoret Municipality/Block 14/284, and
- Pioneer/Ngeria Block 1 (EATC) 12477.
Official land searches dated June 2023 confirmed that both parcels were still legally registered in the 2nd respondent’s name. However, the respondents opposed the application. They claimed the Eldoret property was charged to ABC Bank under a 2014 encumbrance, and the Pioneer/Ngeria property had been sold to a third party, allegedly creating an equitable or overriding interest preventing attachment.
The Magistrate accepted these explanations and dismissed Synergy’s application, declining to issue prohibitory orders. Feeling aggrieved, Synergy filed an appeal at the High Court.
Issues
Whether the two properties despite alleged charges, sales, or third-party claims were available and liable for attachment in execution of Synergy’s decree.
Arguments of Both Parties
Synergy (Appellant)
The respondents failed to produce any documentary evidence of the alleged ABC Bank charge: no charge instrument, no loan documents, no evidence of an outstanding debt.
The alleged sale of the Pioneer/Ngeria property to a third party was never completed or registered; at law, ownership still vested in the 2nd respondent.
A mere entry on a land search cannot override the statutory rule under Section 44(1) of the Civil Procedure Act, which makes a judgment debtor’s property liable to attachment unless a valid, proven encumbrance exists.
No third party filed an objection or came forward to assert a proprietary claim, meaning any alleged beneficial interest was unproven.
Respondents
The Eldoret property was subject to a 2014 charge in favour of ABC Bank, meaning it was encumbered and unavailable for attachment.
The Pioneer/Ngeria property had been sold to one Mike Kibet Bitok, and the respondents claimed only bare legal title remained with the 2nd respondent.
Attachment, they argued, would unfairly prejudice the bank (as chargee) and the buyer (as equitable owner).
Judgment
The High Court allowed the appeal, set aside the Magistrate’s ruling, and granted prohibitory orders over both parcels, allowing Synergy to proceed with attachment and eventual sale in execution.
Legal Reasoning
The Court held that the burden of proof rests on the party alleging an encumbrance or overriding interest. Register entries alone are not determinative; the party must produce the actual instruments charge document, sale agreement, completion documents, loan records, or evidence showing an existing and enforceable third-party right.
Because the respondents produced no primary documents, no proof of a subsisting charge, and no evidence of a completed or registered sale, the Court concluded that both properties remained fully attachable. The magistrate therefore erred in relying solely on unverified entries and assertions.
Conclusion
The High Court ultimately reaffirmed that execution cannot be defeated by unproven claims of encumbrances or third-party interests. A land register entry, without the supporting charge instrument or evidence of a completed sale, is insufficient to bar a judgment creditor from attaching a debtor’s property. By failing to produce the necessary documents, the respondents left the legal and beneficial ownership of both properties squarely with the 2nd respondent. Consequently, Synergy’s right to levy execution prevailed. The decision strengthens the principle that claims that restrict a creditor’s enforcement rights must be backed by concrete, verifiable proof, otherwise the property remains available for attachment
