Eric Timothy Balongo v Paul Siteya Loorkipony [2019] KEELC 958 (KLR)
The bottom line
#A Kajiado court refused to undo a land auction judgment, ruling that a property buyer at a bank auction is legally protected even if the sale process was flawed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant was served with summons to enter appearance
Service was duly effected by the process server John Kimathi Muriuki on 4th April 2017; the affidavit of service was conclusive and unchallenged by cross-examination.
The process server described being taken to the Defendant's home near Kisaju Market by the Plaintiff, meeting the Defendant and serving him with the Plaint and Summons; the Defendant declined to sign the acknowledgment. The Defendant did not cross-examine the process server, admitted his home was near Kisaju Market, and was later sent notice of the judgment through his last known postal address matching that in the title deed, with a certificate of posting filed.
Whether the judgment of 6th March 2019 was irregular (ex parte) or regular
The judgment was regular: the Defendant failed to enter appearance or file a Defence, and the suit was set down for formal proof and heard fully.
The court distinguished the authorities relied on by the Defendant (Ngua v Agip and Rosemary Wanjiru Kungu), which concerned defendants who had entered appearance but failed to file Defences. Here the Defendant neither entered appearance nor filed a Defence, so Order 10 rule 9 applied and the suit was properly set down for formal proof, resulting in a regular judgment.
Whether the draft Defence raises triable issues
No triable issues were raised; the Defendant's complaints target the chargee (Molyn Credit Limited), not the auction purchaser Plaintiff, who is protected under section 99 of the Land Act.
The court held that a purchaser at a properly exercised statutory power of sale is protected by section 99 of the Land Act and the case law (Bomet Beer Distributors; David Mburu Githere citing Riscillah Krobought Grant), and the chargor's remedy against irregular sale is damages against the chargee. The sale had occurred in 2016 after Justice Nzioka had upheld the statutory notices and dismissed the Defendant's injunction applications.
Whether the Defendant's further affidavit filed without leave could be relied upon
The further affidavit filed on 20th May 2019 without leave was struck out as incompetent.
The Applicant never sought leave to file the further affidavit, and the Respondent would be prejudiced if it were allowed; the court therefore struck it out before analysing the merits.
Legal principles established
#- There are no limits or restrictions on the judge's discretion to set aside or vary an ex parte judgment except that it be done on such terms as are just; the court's main concern is to do justice to the parties.
- Where a regular judgment has been entered, the court will not usually set it aside unless satisfied there is a defence on the merits, meaning a triable issue.
- Once property has been sold in a public auction by a chargee exercising its statutory power of sale, the chargor's equity of redemption is extinguished and the remedy is a suit for damages.
- An auction purchaser is protected under section 99 of the Land Act and is not obliged to inquire into the regularity of notices or the sale, save for fraud of which he has notice.
Court orders
#- 1.The Defendant's Notice of Motion dated 26th April 2019 is dismissed
- 2.The ex parte judgment of 6th March 2019 and the consequential decree are NOT set aside
- 3.The Defendant's further affidavit filed 20th May 2019 without leave is struck out as incompetent
- 4.The application is dismissed with costs to the Plaintiff
- Jurisdiction invoked
- Order 10 Rule 11 of the Civil Procedure Rules (application to set aside ex parte judgment); Environment and Land Court original jurisdiction over the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eric Timothy Balongo v Paul Siteya Loorkipony [2019] KEELC 958 (KLR)", Case Analysis (2019). Not stated in the judgment (Kajiado ELC suit; related matters: Nairobi HCCC No. 563 of 2015; Kajiado ELC Case No. 212 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/958/eng@2019-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.