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ELCDismissedMiscellaneous Application dated 28th February 2019 (arising from Kakamega CMC No. 8 and 17 of 2017)· [2019] KEELC 2566 (KLR)

Kennedy K. Shikuku t/a Eshikhoni Auctioneers v Classic Interior Ltd [2019] KEELC 2566 (KLR)

High Court of Kenya
4 July 2019
NMN.A. Matheka
744 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant, Samwel Omusula Libuyi, moved the High Court at Kakamega by an application dated 28th February 2019 brought under Order 22 rule 70 of the Civil Procedure Rules and Rule 18(4) of the Auctioneers (Practice) Rules 2009. He sought a vesting order directing that land parcels BUTSOTSO/INDANGALASIA/5879, 5325 and 825, sold in a public auction conducted by Eshikhoni Auctioneers on 21/12/2018 pursuant to decrees in Kakamega CMC No. 8 and 17 of 2017, be transferred to him as the declared highest bidder who had fully paid the bid money, and that the Deputy Registrar sign the relevant transfer documents. The respondent opposed the application, contending it was premature because arbitration proceedings were pending, that the auction never took place as the applicant failed to attend, that the purported auction was a sham which the respondent intended to challenge separately, and that his equitable right of redemption had been denied. The court, per N.A. Matheka J, held that the application sought to enforce a right. Relying on Section 19 of the Civil Procedure Act, Order 3 Rule 1, and Munyao J's decision in Joseph Kibowen Chemjor v William C. Kasera (2013) eKLR, the judge held that miscellaneous applications are permissible only where the court is not asked to determine rights, and that seeking transfer of title amounts to enforcing a right which must be pursued in a properly instituted suit. The application was dismissed with costs on 4th July 2019.

Key legal issues

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01

Whether a miscellaneous application can be used to enforce a right

Holding

No. Transferring title pursuant to an auction is an enforcement of a right and must be sought in a properly instituted suit, not a miscellaneous application.

Reasoning

The court relied on Section 19 of the Civil Procedure Act and Order 3 Rule 1, which prescribe how suits are to be instituted, and adopted Munyao J's reasoning in Joseph Kibowen Chemjor v William C. Kasera that miscellaneous applications are permissible only where the court is not asked to determine rights, such as leave applications. Here the applicant sought a vesting order transferring land, which determines rights.

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02

Whether the purported auction of 21/12/2018 was valid

Holding

The court made no finding on the validity of the auction, as the respondent indicated intent to separately challenge it and the application failed on the threshold procedural point.

Reasoning

The respondent argued the auction was a sham, that the auctioneer Laban Odero appeared but the applicant never did, and that he was denied the equitable right of redemption. There were also pending proceedings before an arbitrator scheduled for 29th March 2019. The court did not determine these factual disputes because the application was fatally defective in form.

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Legal principles established

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  • A party cannot enforce a substantive right through a miscellaneous application; suits enforcing rights must be instituted in the manner prescribed by the rules

Court orders

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  1. 1.The application dated 28th February 2019 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 19
  • Civil Procedure RulesOrder 3 Rule 1
  • Civil Procedure RulesOrder 22 rule 70
  • Auctioneers (Practice) Rules 2009Rule 18(4)
  • Auctioneers Rules 1997Rules 17(5) and (6)

Cases cited (1)

  • Joseph Kibowen Chemjor vs William C. Kasera
    (2013) eKLR
Jurisdiction invoked
Order 22 rule 70 of the Civil Procedure Rules and Rule 18(4) of the Auctioneers (Practice) Rules 2009

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, "Kennedy K. Shikuku t/a Eshikhoni Auctioneers v Classic Interior Ltd [2019] KEELC 2566 (KLR)", Case Analysis (2019). Miscellaneous Application dated 28th February 2019 (arising from Kakamega CMC No. 8 and 17 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2566/eng@2019-07-04

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