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ELCOtherNot stated in the judgment excerpt· [2016] KEELC 1000 (KLR)

Michael Kimutai Ronoh & 2 others v Consolidated Bank of Kenya Ltd & 3 others [2016] KEELC 1000 (KLR)

High Court of Kenya
22 February 2016
AOANTONY OMBWAYO
375 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out an accountant's evidence in a disputed property auction case, ruling that expert financial testimony was irrelevant to the issues for trial.

What this practically means

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Executive summary

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This interlocutory ruling by Antony Ombwayo J at Eldoret arose during the partial hearing of a suit challenging a public auction sale of charged properties conducted on 14.7.2014. On 2.7.2015 PW2, an accountant, had testified in chief and been cross-examined by Mr. Odhiambo for the defendants. When he returned for further cross-examination on 30.9.2015, M/s Koech for the Interested Party objected and sought the expungement of his evidence, arguing that the matters he addressed had already been determined by the court. Mr. Odhiambo concurred, stating the only live issue was whether the 14.7.2014 sale was valid, particularly the validity of the notices. Mr. Kigamwa for the plaintiff countered that determining a valid sale required examining the chargee's statutory power of sale vis-à-vis the chargor's right of redemption, and that the plaintiff, asserting his indebtedness had been extinguished, needed a financial expert to prove it. The court restated the eight issues fixed in an earlier ruling - covering advertisement, the fact of auction, execution and defects of the Memorandum of Sale, the 25% deposit, whether the sale should be upheld, and extinction of the right of redemption - and held none required financial expert evidence. It struck out PW2's evidence as irrelevant, with costs in the cause. The judgment is dated 22.2.2016, yet it references a ruling dated 27.11.2016, an internal date inconsistency flagged for verification against the court record.

Key legal issues

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01

Whether the evidence of PW2, an accountant, was relevant to the issues for determination

Holding

The evidence was irrelevant and was struck out

Reasoning

The court restated the eight issues framed in its ruling dated 27.11.2016, all of which concern the validity of the advertised public auction, execution and defects of the Memorandum of Sale, payment of the 25% deposit, and extinction of the right of redemption. None of those issues called for financial expert evidence, so the accountant's testimony was inadmissible on the pleaded issues.

p. 2
02

Scope of the dispute before the court

Holding

Counsel agreed the only issue is the validity of the sale conducted on 14.7.2014, specifically the validity of the notices

Reasoning

Mr. Odhiambo for the defendants concurred with M/s Koech for the interested party that the trial had narrowed to whether the sale conducted on 14.7.2014 was valid and, precisely, whether the notices were valid. The plaintiff contended that determining a valid sale requires examining the chargee's statutory power of sale alongside the chargor's right of redemption, and that proving extinguished indebtedness would need a financial expert.

p. 1

Legal principles established

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  • Evidence that is irrelevant to the issues framed for determination may be struck out

Court orders

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  1. 1.The evidence of PW2 is struck out for being irrelevant, with costs in the cause
Jurisdiction invoked
Not stated in the judgment excerpt

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, "Michael Kimutai Ronoh & 2 others v Consolidated Bank of Kenya Ltd & 3 others [2016] KEELC 1000 (KLR)", Case Analysis (2016). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1000/eng@2016-02-22

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