Attain Advisory Consultants Limited v Nairobi City County & 3 others
The bottom line
#Kenya's Court of Appeal confirmed that buying property at a flawed court auction gives no ownership rights—only a refund of the purchase price.
What this practically means
#Executive summary
#Key legal issues
#Adoption of a consent order to which an affected party was not privy
The trial judge properly adopted the consent order because it resolved proceedings and a sale that were themselves nullities; the appellant's non-consent did not invalidate the adoption.
Order 25 rule 5(1) CPR governs recording of compromises, but the court's inherent jurisdiction under section 3A of the Civil Procedure Act and its power under Order 22 Rule 75 to set aside sales for irregularity or fraud were engaged. The consent was between the decree holder and the 2nd to 4th respondents; the appellant's rights as purchaser flowed from a decree and sale that were nullities. A court of justice was duty-bound to reject the objection and set aside the decree and execution.
Nullity of proceedings against a deceased person and ex parte retroactive amendment of decrees and vesting orders
Six cumulative acts of nullity - suit against a deceased person, sale of co-owners' shares not joined, retroactive amendment of the decree and vesting order after the sale, superimposition of non-judgment-debtors, and ex parte amendments without hearing - rendered the proceedings and sale void and constituted arbitrary deprivation of property.
The court enumerated each defect: the suit and decree against Habiba, who died on 5th December 2010, was a nullity; the 2nd to 4th respondents were co-proprietors never joined or heard; the decree and vesting order were amended ex parte and retrospectively after the sale. Cumulatively these acts deprived the court of jurisdiction and amounted to arbitrary deprivation of the co-owners' property under Article 40.
Court's power to set aside irregular judgments and sales on its own motion
An irregular default judgment is set aside ex debito justitiae as a matter of right; the court need not be moved by any party and may act on its own motion once the irregularity comes to its notice.
Following James Kanyiita Nderitu v Marios Philotas Ghikas and Joseph Njenga Njoroge v Kabiri Mbiti, the court held that the procedure by which the court is moved is unimportant where the judgment is irregular. The paramount function of a court is to do substantial justice in a procedurally fair manner, a constitutional principle under Articles 159(2)(d) and (e).
Legal principles established
#- Proceedings against a deceased person are a nullity, and an irregular default judgment may be set aside ex debito justitiae even without an application by a party
- There can be no correction or amendment of execution after a decree has been executed, and no proceedings can lie against a dead person
- Property rights under Article 40 do not extend to unlawfully acquired property, and a court may set aside a sale in execution notwithstanding a purchaser's claim to be a purchaser for value without notice
- A purchaser is entitled to refund of the purchase price where a sale of immovable property in execution is set aside
Court orders
#- 1.The appeal is dismissed with costs to the 2nd, 3rd and 4th respondents
- 2.The 1st respondent is not entitled to costs as it did not take part in the appeal
- On appeal from
- Environment and Land Court (High Court)
- ELC Misc. Cause No. 144 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court under Article 164 of the Constitution; appeal against ruling adopting a consent order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attain Advisory Consultants Limited v Nairobi City County & 3 others", Case Analysis (2019). Civil Appeal No. 94 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/110/eng@2019-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.