Muritu (Suing as the legal representative of John Muritu Kigwe) & another v Rao & 3 others (Civil Appeal 571 of 2019) [2025] KECA 99 (KLR)

The court distinguished the position under the Registered Land Act, where a sale without a valid statutory notice is a nullity, from the ITPA regime. Section 69B(2) of the ITPA protects the purchaser's title from impeachment on grounds of no case arising, lack of due notice or irregular exercise of the power, confining the damnified person to damages. The trial judge's contra-statute finding could not be disturbed absent a cross-appeal, but it did not avail the appellants because their remedy lay only in damages, which were not pleaded.

Following the Court's decision in Patrick Kanyagia, the equity of redemption terminates upon the signing of the contract of sale. The trial judge's finding that the equity of redemption was extinguished once a binding contract was entered into between the bank and the 3rd respondent was affirmed, notwithstanding the unlawful Land Control Board consent and the absence of the statutory notice. The absence of consent of the Land Control Board did not assist the appellants since their remedy lay in damages.

The court re-analysed the pleadings and prayers in both consolidated suits. In HCCC No. 411 of 2007 the 2nd appellant never prayed for damages for wrongful exercise of statutory power of sale, and its submissions clarified that general damages were sought for trespass to chattels. In HCCC No. 665 of 2008, the 1st appellant likewise never pleaded damages for the unlawful sale. Since parties are bound by their pleadings, the trial judge's finding was affirmed and the undervaluation issue became academic.

The appellants relied on Gikumbu Mbuthia vs. Jimba Credit Ltd for the proposition that a fraudulently undervalued sale can be set aside, and argued that no better title could pass. The court agreed with the trial judge that the protection of section 69B(2) extended to the 3rd and 4th respondents. The 4th respondent was protected as a bona fide purchaser for value, fraud and collusion having not been proved, and the remedy lay in damages which were unpleaded.

The trial court had held that service of the statutory notice on the chargor was not proved, rendering the sale contra statute. The respondents did not file a notice of cross-appeal to challenge that finding. Citing Margaret Njeri Mbiyu, the court held that a respondent content with the judgment cannot attack aspects of it without notice; the notice of cross-appeal is what would confer jurisdiction to revisit the finding.