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ELCAllowedApplication dated 6th June 2011 arising from RMCC 1560 of 2010· [2018] KEELC 2969 (KLR)

In re Khalid Islam Ali Islam [2018] KEELC 2969 (KLR)

High Court of Kenya
13 April 2018
AOA. OmolloLKL. C. Komingoi
932 words in judgment
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The bottom line

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The High Court confirmed a property auction sale, ruling that an appeal alone does not stop execution unless a stay order is actually in force.

What this practically means

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Executive summary

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This was a High Court application dated 6th June 2011 by Khalid Islam Ali Islam, the purchaser at a public auction held on 12th April 2011 in execution of a decree in RMCC 1560 of 2010, seeking confirmation of the sale of Flat No 2 on CR 18351/1/MN and its absolute vesting in him. The respondent, Devshi Virji Shah, holding a power of attorney for the suit property's proprietor, opposed the application. He argued that no mandatory 45 days notice under the Auctioneers Rules 1997 was served, that the advocates' agreement on terms of sale was absent, that no proof of payment of the purchase price was exhibited, and that a stay order from the High Court barred the application. The court framed two questions: whether a stay of execution was in force, and whether the application could be refused for non-compliance with the Auctioneers Rules or lack of proof of payment. On the first, the court found the exhibited stay order predated the application it purported to stay and that no subsisting stay was demonstrated; mere filing of an appeal was not a bar. On the second, it held that challenges to the validity of the sale process belonged in the pending appeal against dismissal of the respondent's setting-aside application, and the court-issued certificate of sale showed the court was satisfied as to payment. The application was allowed in terms of prayers (1) and (2), with costs in the cause.

Key legal issues

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01

Whether a subsisting stay of execution barred the application for confirmation of the sale

Holding

No stay was in force; the stay order exhibited post-dated the application it purported to stay and no relevant application was annexed.

Reasoning

The respondent annexed an order of 15.4.2011 said to be from HC Civil Appeal No 38 of 2011, but the order in evidence was issued on 19th April 2011 in HCCA 58 of 2011 granting temporary stay pending determination of an application. That order preceded the 14th July 2011 application it was said to stay. The respondent failed to annex the relevant application or its outcome after 6th June 2011, so the court could only infer no stay existed.

p. 2
02

Whether failure to comply with the Auctioneers Rules 1997 (45 days notice) or to exhibit proof of payment defeated the application

Holding

No; the validity of the sale process falls to be determined in the pending appeal, and the certificate of sale discharged any concern about proof of payment.

Reasoning

The respondent had already applied to set aside the sale in RMCC 1560 of 2010, that application was dismissed, and he appealed; the validity of the sale is therefore for that appeal. As to payment, a certificate of sale issued by the Court on 12.4.2011 confirmed the sale at Kshs 2,800,000, and the Court must have been satisfied with documents including proof of payment before issuing it.

p. 2

Legal principles established

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  • Where no order staying execution is exhibited, the mere filing of an appeal is not a bar to confirmation of a sale in execution.
  • Compliance with the Auctioneers Rules is a ground for setting aside a sale, not for refusing confirmation where the validity of the sale falls to be determined in a pending appeal.
  • A certificate of sale issued by the Court raises an inference that the Court was satisfied with proof of payment before issuing it.

Court orders

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  1. 1.The application dated 6th June 2011 is allowed in terms of prayer (1) - the sale of Flat No 2 CR 18351/1/MN held by public auction on 12th April 2011 is confirmed and made absolute in favour of the purchaser
  2. 2.The application is allowed in terms of prayer (2) - Flat No 2 CR No 18351 on LR No 1215/1/MN is vested absolutely in favour of the purchaser
  3. 3.Costs in the cause

Authorities

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Legislation

  • Auctioneers Rules45 days mandatory notice
Jurisdiction invoked
High Court civil jurisdiction in execution-related application following decree in RMCC 1560 of 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "In re Khalid Islam Ali Islam [2018] KEELC 2969 (KLR)", Case Analysis (2018). Application dated 6th June 2011 arising from RMCC 1560 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2969/eng@2018-04-16

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