Mortgages (Special Provisions) Act

LAWS OF KENYA
THE MORTGAGES (SPECIAL PROVISIONS) ACT
CAP. 304
Revised and published by the National Council for Law Reporting
with the authority of the Attorney-General as gazetted by the Government Printer
www.kenyalaw.org

Kenya
Mortgages (Special Provisions) Act
Cap. 304
Legislation as at 31 December 2022
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Share widely and freely.

Mortgages (Special Provisions) Act (Cap. 304)
Contents
1. Short title ........................................................................................................................................................................................................... 1
2. Interpretation .................................................................................................................................................................................................... 1
3. Suit for possession of mortgaged property .......................................................................................................................................... 1
4. Affidavit in response to summons and affidavit in reply ................................................................................................................. 2
5. Decree for possession ................................................................................................................................................................................... 2
6.

................................................................................................................................................. 2
6.

Procedure ............................................................................................................................................................................................................ 3
7. Saving for other laws .................................................................................................................................................................................... 3

.................................................................................................................................................... 3

Mortgages (Special Provisions) Act (Cap. 304) Kenya
MORTGAGES (SPECIAL PROVISIONS) ACT
CAP. 304
Assented to on 26 June 1968
Commenced on 28 June 1968
[Amended by Finance Act, 1999 (Act No. 4 of 1999) on 10 June 1999]
[Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]
An Act of Parliament to enable mortgage finance companies to obtain possession more easily of property
in respect of which they are able as mortgagees to exercise their power of sale or appoint receivers
1. Short title
This Act may be cited as the Mortgages (Special Provisions) Act. 2. Interpretation
In this Act—
"a company" means a mortgage finance company within the meaning of the Banking Act (Cap. 488);
"approved tenant" means a tenant holding under a lease or tenancy agreement entered into at any time
with the prior written approval of a company;
"mortgage" includes charge;
"the specified conditions" means the conditions specified in paragraphs (a), (b), (c) and (d) of section 3(1)
of this Act. [Act No. 4 of 1999, s. 66.]
3.

e specified conditions" means the conditions specified in paragraphs (a), (b), (c) and (d) of section 3(1)
of this Act. [Act No. 4 of 1999, s. 66.]
3.

Suit for possession of mortgaged property
(1) Where—
(a) immovable property is mortgaged to a company (whether mortgaged before or after the
commencement of this Act); and
(b) the company as mortgagee has power to sell the property by virtue of section 69, or to
appoint a receiver of the property by virtue of section 69F, of the Transfer of Property Act,
1882, of India (repealed), or to sell the property or appoint a receiver of the income of the
property under section 74(2) of the Registered Land Act (Cap. 300); and
(c) there has been a breach of some agreement on the part of the mortgagor contained in the
mortgage; and
(d) the property is in the occupation of the mortgagor or of some other person who is not an
approved tenant,
the company may institute a suit in the High Court in accordance with this Act for the possession of
the property. (2) Upon instituting a suit under subsection (1) of this section, the company shall file an affidavit
verifying the plaint and testifying that the specified conditions exist in relation to the property and
giving full particulars concerning them. 1

vit
verifying the plaint and testifying that the specified conditions exist in relation to the property and
giving full particulars concerning them. 1

Mortgages (Special Provisions) Act (Cap. 304) Kenya
(3) In a suit instituted under subsection (1) of this section, the mortgagor shall be made the defendant,
and the summons shall—
(a) require the defendant, if he believes that all the specified conditions do not exist in relation
to the property, to file an affidavit and serve a copy on the company in accordance with
section 4(1) of this Act;
(b) give notice to the defendant of the company’s rights under section 5(1) of this Act;
and a copy of the affidavit filed by the company shall be served on the defendant with summons. (4) Where the person serving the summons and affidavit, after using all due and reasonable diligence,
cannot find that defendant, he shall affix the copy of the summons and affidavit on the outer
door of the property, and shall return the original to the Court with a statement endorsed on it
or annexed to it that he so affixed the copy and of the circumstances in which he did so, and the
summons and affidavit shall then be deemed to have been duly served.

that he so affixed the copy and of the circumstances in which he did so, and the
summons and affidavit shall then be deemed to have been duly served.

(5) The person serving the summons and affidavit shall also leave a copy of the summons and a copy
of the affidavit with some person appearing to reside on the property, or, if no such person can be
found, affix them on the outer door of the property. [Act No. 4 of 1999, s. 67.]
4. Affidavit in response to summons and affidavit in reply
(1) Within fourteen days of being served with the summons, the defendant, if he believes that all the
specified conditions do not exist in relation to the property, may file an affidavit in response to the
summons testifying to such belief and giving full particulars of the reasons why he holds it, and
where he does so he shall forthwith serve a copy thereof on the Company. (2) Within seven days of an affidavit being filed under subsection (1) of this section or a copy thereof
being served on the Company (whichever is the later), the Company may file a further affidavit in
reply to the defendant’s affidavit, and where it does so it shall forthwith serve a copy thereof on the
defendant. 5.

may file a further affidavit in
reply to the defendant’s affidavit, and where it does so it shall forthwith serve a copy thereof on the
defendant. 5.

Decree for possession
(1) At any time after the expiration of twenty-one days after the summons has been served on the
defendant, the company may apply to the Court for a decree for possession of the mortgaged
property, and on such application the Court shall read the affidavits filed and shall pass a decree for
possession accordingly, unless it is satisfied on such reading that the specified conditions do not
exist, or that there is reasonable doubt whether they exist, in which case the Court shall grant leave
to defend, either unconditionally or on such terms as to giving security or time of trial or otherwise
as the Court may think fit. (2) Notice of the application shall be given in writing to the defendant if he filed an affidavit in
response to the summons.

the Court may think fit. (2) Notice of the application shall be given in writing to the defendant if he filed an affidavit in
response to the summons.

(3) A decree for possession passed under subsection (1) of this section shall have the effect of
conferring on the company the sole right to possession of the mortgaged property, and, upon its
being registered under the law under which the title to the property is registered, it shall have the
effect of determining every lease, tenancy agreement and licence to occupy, whether registered or
not, which is then subsisting in respect of the property (other than the lease (if any) under which
the property is held by the mortgagor):
Provided that this subsection shall not apply where the lease, tenancy agreement or licence to
occupy is between the person in debt and an approved tenant. [Act No. 4 of 1999, s. 68.]
2

not apply where the lease, tenancy agreement or licence to
occupy is between the person in debt and an approved tenant. [Act No. 4 of 1999, s. 68.]
2

Mortgages (Special Provisions) Act (Cap. 304) Kenya
6. Procedure
The procedure under this Act shall be governed by the Civil Procedure Act and the rules made thereunder,
so far as the Act and rules are not inconsistent with this Act, and the Rules Committee established by
section 81 of the Civil Procedure Act (Cap. 21) may make rules of court to provide for any additional
matters of procedure under this Act for which provision may be necessary.
7. Saving for other laws
This Act shall have effect notwithstanding the terms of a lease or tenancy agreement, and notwithstanding
any other written law.
3