INDUSTRIAL & COMMERCIAL

DEVELOPMENT CORPORATION V KARIUKI

GATHECA RESOURCES LTD
CIVIL APPEAL NO 45 OF 1976
CORAM LAW V-P, MUSTAFA & MUSOKE JJ A
 SUMMARY OF THE FACTS
• The case involves a dispute over the right of redemption on a mortgaged property. The
appellant had lent money to the respondent and had taken mortgage over the respondent’s
property as security for the loan. The respondent had defaulted the loan and the appellant
had initiated foreclosure proceedings to sell the property and recover the debt. The
respondent argued that they had tendered the full amount the appellant’s advocates and they
had refused the money. The appellant argued that they had a right of redemption under
section 69(1) of the transfer of property act which allowed them to reclaim property by
paying off the outstanding debt.
• The case was heard in the high court, where the court dismissed the appellant's application
for discharge of an injunction and held that the respondent had not lost it’s right to redeem.
The court also ordered the appellant to deliver the documents of title to discharge the
mortgage. The appellant appealed the decision to the court of appeal.
 HOLDING
• The court of appeal upheld the decision of the high court. The court held that the appellant
had not yet exercised the power of sale within the meaning of section 69(1) of the transfer of
property act and that the respondent had not lost its right to redeem. The court held that the
amount that had been tendered into the appellant's advocates constituted payment in full and
it ordered them to deliver the necessary documents of title to discharge the mortgaged
property.
 HOLDING –CONCURRING
• Law V.P agreed with every aspect of the judgement prepared by Mustafa JA, however, he
did not agree with the judges findings of bad faith on the part of the appellant.
• The appeal was dismissed.