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ELCPartially AllowedKericho ELCase (Plaint dated 18th June 2013)· [2018] KEELC 2311 (KLR)

Jacob Oloo Ogut v James Matwere Matara [2018] KEELC 2311 (KLR)

Environment and Land Court
20 July 2018
JOJ.M. Onyango
1,873 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld an auction buyer's land title, ordered the defaulting former owner out within 90 days, but refused mesne profits claims.

What this practically means

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Executive summary

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The Plaintiff sued for a declaration that he was the legal proprietor of land parcel KERICHO/KIPLELARTET/1178, possession, eviction of the Defendant, general damages and mesne profits. His case was that the Defendant charged the suit property to Equity Bank in 2006 to secure a loan of Kshs. 300,000, defaulted, and the bank sold the property by public auction in Kisumu on 28th June 2012, where the Plaintiff emerged the highest bidder at Kshs. 500,000 and was issued a title, but the Defendant refused to vacate. The Defendant admitted the loan, the charge and his default, and admitted being served with a statutory notice in 2009, but contended the sale was unlawful for want of notices and that he obtained no clean title. The Plaintiff called bank and auctioneer witnesses who proved the statutory notices, three advertisements and failed auctions, the valuation, the memorandum of sale and certificate of sale; objections to the production of the charge and the 2009 statutory notice were sustained. The court held that the Defendant, who had done nothing to redeem and had not sued the bank, could not attack the sale against a bona fide purchaser for value without notice, and distinguished the Kaniki Karisa authority relied on by the Defendant. Judgment was entered for the Plaintiff: declarations of proprietorship and of the unlawfulness of the Defendant's occupation, possession within 90 days failing which eviction, general damages of Kshs. 100,000, and costs with interest on damages. Mesne profits were declined as neither pleaded nor proved.

Key legal issues

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01

Validity of the sale by the chargee and the Plaintiff's title

Holding

The Plaintiff proved his case on a balance of probabilities as a bona fide purchaser at the auction; the sale was valid and his title stands

Reasoning

The Defendant admitted taking the loan, charging the property, defaulting, and being served with a statutory notice in 2009, yet took no steps to redeem before the sale after three failed auctions. Three bidders attended and the Plaintiff was the highest bidder at Kshs. 500,000 which he paid in full. The bank has not been enjoined as a party, and any complaint about the sale should have been directed at the bank, not the purchaser.

p. 2
02

Distinguishing the Kaniki Karisa Kaniki v Kenya Commercial Bank authority relied on by the Defendant

Holding

The facts of that case were distinguishable and it did not apply

Reasoning

In Kaniki Karisa the court nullified the sale and restored the title to the chargor because the bank had not followed the correct procedures. Here, by contrast, the Defendant admitted default and service of a statutory notice in 2009, did nothing to redeem, and never sued the bank. The court therefore declined to follow the authority relied on by the Defendant's counsel.

p. 2
03

Mesne profits

Holding

Refused because not pleaded and not proved

Reasoning

Although the plaint sought general damages and mesne profits from the date the plaintiff acquired ownership, the court found that mesne profits were neither pleaded nor proved. It nonetheless awarded general damages of Kshs. 100,000 and interest and costs on that head.

p. 2

Legal principles established

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  • A purchaser at a public auction who is a bona fide purchaser for value without notice cannot have his title cancelled where no wrong is attributed to him
  • A chargor who wishes to challenge the conduct of a sale by the chargee should sue the bank rather than the purchaser

Court orders

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  1. 1.A declaration that the Plaintiff is the legal proprietor of land parcel number KERICHO/KIPLELARTET/1178 and shall take possession thereof within 90 days
  2. 2.A declaration that the Defendant's continued stay on the suit land is unlawful and that he ought to move out within 90 days failing which an eviction order shall be issued against him
  3. 3.General damages in the sum of Kshs. 100,000
  4. 4.Costs of the suit and interest on the general damages at court rates until payment in full

Authorities

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Cases cited (1)

  • Kaniki Karisa Kaniki V Kenya Commercial Bank & 2 Others
    (2016) eKLR
Jurisdiction invoked
Original civil suit (plaint) for declarations, possession, eviction, damages and mesne profits; Environment and Land Court

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, "Jacob Oloo Ogut v James Matwere Matara [2018] KEELC 2311 (KLR)", Case Analysis (2018). Kericho ELCase (Plaint dated 18th June 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2311/eng@2018-07-20

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