Busuru Richard Mark v B A Omuse Interested Party Peter Kakai Cheloti [2019] KEELC 2679 (KLR)
The bottom line
#The High Court confirmed that a Kenyan who won a court-ordered land auction over a decade ago finally gets the title, even without paying the full balance.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant's application to confirm the public auction sale of LR No. 2116/IV/26 Kitale should be allowed
The application was merited; the sale of 3rd December 2007 was declared absolute, the applicant confirmed as purchaser, and consequential transfer, vesting and possession orders issued.
The sale by public auction took place on 3rd December 2007 with the applicant as highest bidder paying a deposit of Kshs.2,250,000/-. The respondent's prior applications challenging the sale had been dismissed, and no stay had been obtained from the Court of Appeal. There was no application before the court to set aside the certificate of sale. The applicant's failure to pay the balance was reasonably explained by the respondent's refusal to hand over title documents. The court applied Section 48 of the Civil Procedure Act and Order 22 rule 77(1).
Whether the application was premature given the respondent's pending appeal
The application was not premature because the respondent had not obtained orders of stay from the Court of Appeal.
The respondent contended the application was premature as there were proceedings challenging the sale and an appeal against the dismissal of his notice of motion dated 23rd March 2016. The court held the propriety of the sale had already been dealt with in previous applications and could not be re-litigated; without a stay order from the Court of Appeal, the confirmation application could proceed.
Whether the applicant's non-payment of the balance of the purchase price disentitled him to confirmation
The applicant's explanation for not paying the balance was reasonable and did not defeat the application.
The applicant averred he was ready, willing and able to pay the balance but had been prevented because the respondent showed no willingness to hand over the title documents. The court accepted this as a reasonable explanation, noting the balance was payable within 30 days but the pendency of the case and the respondent's conduct frustrated completion.
Legal principles established
#- Where immovable property is sold in execution of a decree and the sale has become absolute, the property vests in the purchaser from the time of the sale, not from when the sale becomes absolute.
- Where no application under Rules 74, 75 or 76 of Order 22 is made, or any such application is disallowed, the court shall confirm the sale and it becomes absolute as regards the judgment debtor's interest.
Court orders
#- 1.A declaration that the sale by public auction in respect of LR No. 2116/IV/26 Kitale, conducted on 3rd December 2007, is absolute
- 2.A certificate confirming Peter Kakai Cheloti is the purchaser of LR No. 2116/IV/26, Kitale
- 3.The Deputy Registrar directed to execute the transfer instrument on behalf of the registered owner (the respondent)
- 4.The respondent ordered to produce and hand over the original title documents to the Registrar of Lands within twenty-one days of service of an order requiring him to do so
- 5.In the alternative, the Registrar of Lands directed to dispense with the requirement that the original document of title be made available before the property can be transferred
- 6.Upon registration of the transfer, the Registrar of Lands directed to issue the applicant a provisional Certificate of Title for LR No. 2116/IV/26 Kitale
- 7.A vesting order of a good and valid title to issue in favour of the applicant upon completion of the transfer process
- 8.The respondent and/or his tenant ordered to forthwith hand over vacant possession of LR No. 2116/IV/26 Kitale to the applicant
- 9.Costs of the application borne by the respondent
- Jurisdiction invoked
- Sections 48, 1A, 1B and 3A of the Civil Procedure Act (Cap 21); Section 14(a) of the Land Registration Act; Order 22 Rules 77(1), 79 and 81 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Busuru Richard Mark v B A Omuse Interested Party Peter Kakai Cheloti [2019] KEELC 2679 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2679/eng@2019-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.