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ELCAllowedApplication dated 28/8/2012 (arising from Nairobi HCCC 1648 of 1985)· [2013] KEELC 158 (KLR)

SAMUEL NGUGI KIMANI v NYAMBURA NJUGUNA FRANCIS KIMANI [2013] KEELC 158 (KLR)

High Court of Kenya
8 April 2013
LGL.N. GACHERU
536 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If you buy property at a court-ordered auction in Kenya and pay in full, the High Court can order it transferred to you even years later.

What this practically means

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Executive summary

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The Applicant, Samuel Ngugi Kimani, moved the High Court by notice of motion dated 28/8/2012 under Section 3A and 48 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking a vesting order over L.R. No. 209/2489/23 Nairobi and an order authorising the Deputy Registrar to execute all documents necessary to transfer the property to him. He deposed that the Court (Mbaluto J.) had ordered the property sold by public auction in Nairobi HCCC 1648 of 1985; that Regent Auctioneers sold it to him on 20/12/1996 for Kshs. 1.3 Million; that he paid a 25% deposit of Kshs. 325,000 and the balance of Kshs. 975,000 by 6/1/1997, receiving receipts, a memorandum, and a Certificate of Sale; and that he had enjoyed quiet possession since, though the property was never transferred into his name. The court perused the ruling of Mbaluto J., which allowed either the Plaintiff or Defendants an equal opportunity to bid with net proceeds divided equally, and found from the annexed documents that the Applicant placed the highest bid, paid in full, and took possession. Noting that the Respondents never appealed the ruling of 20/4/1998, the court held that those orders remained in force. Applying the provision that property sold in execution vests in the purchaser from the time of sale, Gacheru J. granted a vesting order in favour of the Applicant and ordered the Deputy Registrar to execute all documents necessary to effect the transfer. The application succeeded in its entirety.

Key legal issues

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01

Entitlement to a vesting order following a court-ordered auction sale

Holding

The Applicant was entitled to a vesting order because he placed the highest bid, paid the full purchase price, received a Certificate of Sale, and took quiet possession; no appeal was lodged against the ruling authorising the sale.

Reasoning

The court perused Mbaluto J's ruling permitting the parties to bid with proceeds split equally, and examined the annexures: receipts for the 25% deposit of Kshs. 325,000 paid on 20/12/1996 and the balance of Kshs. 975,000 paid by 6/1/1997, plus a Certificate of Sale. The Applicant took possession immediately and enjoyed quiet possession. The Respondents never appealed the 1998 ruling, so those orders remained in force, justifying vesting of the property in the purchaser.

p. 2

Legal principles established

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  • Where immovable property is sold in execution of a decree and the sale has become absolute, the property vests in the purchaser from the time of the sale, not from when the sale becomes absolute.
  • Unappealed orders of the court remain in force.

Court orders

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  1. 1.That Samuel Ngugi Kimani be and is hereby granted a vesting order for property known as L.R. No. 209/2489/23
  2. 2.The Deputy Registrar be and is hereby ordered to execute all such documents that is necessary to effect the transfer of property known as L.R. No. 209/2489/23 to Samuel Ngugi Kimani

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 48
  • Civil Procedure RulesOrder 51 Rule 1
Jurisdiction invoked
Section 3A and 48 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "SAMUEL NGUGI KIMANI v NYAMBURA NJUGUNA FRANCIS KIMANI [2013] KEELC 158 (KLR)", Case Analysis (2013). Application dated 28/8/2012 (arising from Nairobi HCCC 1648 of 1985). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/158/eng@2013-04-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.