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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 3411 (KLR)

Samuel Ayienda Mokua v Ting’a Trading Co Limited & another [2018] KEELC 3411 (KLR)

High Court of Kenya
13 April 2018
JMJ. M. Mutungi
1,165 words in judgment
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The bottom line

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A Kenyan court confirmed a 2007 land auction sale as absolute, ruling that a judgment debtor's failed attempts to overturn the sale cannot block the buyer indefinitely.

What this practically means

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Executive summary

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This ruling by J. M. Mutungi, J at the High Court, Kisii, determines the purchaser's Notice of Motion dated 26th June 2008 brought under Section 98 of the Civil Procedure Act and Order XXI Rule 81(1) of the previous Civil Procedure Rules, seeking confirmation of the sale by public auction of land parcel No. Lietego Settlement Scheme/83 held on 16th July 2007, at which the applicant was declared the highest bidder at Kshs. 750,000/-. The application lay dormant for years because the plaintiff/judgment debtor filed a multiplicity of applications, all determined against him, including an application dated 22nd August 2008 which was found res judicata in a ruling of 30th September 2016. The plaintiff's replying affidavit was held irrelevant since it raised issues already determined by the court. The court analysed Order XXI Rules 78, 79, 80, 81(1) and 83 (mirrored in Order 22 Rules 74-79 of the 2010 Rules), holding that where no application under Rules 78, 79 or 80 is made, or such applications are disallowed, the court is obliged to confirm the sale, which becomes absolute as regards the judgment debtor's interest, and to grant the purchaser a certificate of sale. Since the plaintiff's application to set aside the sale had been refused and the applications for stay, setting aside and review of the judgment disallowed, the sale became absolute. The court allowed the application in terms of prayer (2), confirming the sale, and awarded costs to the purchaser/applicant.

Key legal issues

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Whether the sale by public auction of Lietego Settlement Scheme/83 should be confirmed and made absolute

Holding

The sale is confirmed as absolute because the judgment debtor's applications to set aside the sale, stay execution, review or set aside the judgment were all refused, and no application under Order XXI Rules 78, 79 or 80 remains pending

Reasoning

The sale was conducted in execution of a decree pursuant to a court order. Under Order XXI Rule 81(1), once applications under Rules 78, 79 and 80 are absent or disallowed, the court is mandatorily obliged ('shall') to confirm the sale. The plaintiff's application to set aside the sale was refused, and the applications for stay of execution, setting aside and review of the judgment were equally disallowed. The plaintiff's reply raised issues already determined in earlier applications and was irrelevant. Accordingly the sale became absolute and the purchaser is entitled to confirmation and a certificate of sale.

p. 2

Legal principles established

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  • Where no application is made under Order XXI Rules 78, 79 or 80, or where such application is made and disallowed, the court shall make an order confirming the sale, and the sale becomes absolute in so far as the judgment-debtor's interest is concerned
  • Once a sale of immovable property has become absolute, the court shall grant a certificate specifying the property sold and naming the purchaser

Court orders

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  1. 1.The application dated 26th June 2008 is allowed in terms of prayer (2) thereof, namely that the Deputy Registrar do make an order confirming the sale made on 16th July 2007 of land parcel No. Lietego Settlement Scheme/83 at a public auction
  2. 2.The costs of the application are awarded to the purchaser/applicant

Authorities

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Legislation

  • Civil Procedure ActSection 98
  • Civil Procedure Rules (previous)Order XXI Rules 78, 79, 80, 81(1), 83 and Order XLVIII Rule 5(1)(B)
  • Civil Procedure Rules 2010Order 22 Rules 74, 75, 76, 77 and 79
Jurisdiction invoked
Section 98 of the Civil Procedure Act, Order XXI Rule 81(1) and Order XLVIII Rule 5(1)(B) of the previous 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 Ayienda Mokua v Ting’a Trading Co Limited & another [2018] KEELC 3411 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3411/eng@2018-04-13

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