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ELCPartially Allowed· [2020] KEELC 2487 (KLR)

Emmanuel Mathews v Jerusha Naimutie Shani & 2 Others [2020] KEELC 2487 (KLR)

Environment and Land Court
21 May 2020
7,699 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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A Kajiado court upheld a 2001 land auction, confirming that a served statutory notice stays valid even when the auction is postponed.

What this practically means

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Executive summary

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The Plaintiff, Emmanuel Mathews, sued for a permanent injunction and eviction of the 1st and 2nd Defendants from land parcel Loitoktok/Enkariak-Rongena/243, which he bought at a public auction held on 28th December 2001 by the 3rd Defendant bank in exercise of its statutory power of sale over the deceased chargor Melton Ole Shani's property. The 1st and 2nd Defendants, the chargor's widow and son, counterclaimed seeking setting aside of the auction and transfer, nullification of the title, vacant possession, and an account of the sale of Kajiado/Torosei/7, alleging the sale occurred after the chargor's death without proper statutory notices and at an undervalue. The court framed five issues. It found the statutory power of sale had crystallised after prolonged default and indulgence; the 45-day Notice of Sale dated 25th September 2001 was served on Major Shani, an adult family member, and by registered post to the family address, and under Mbuthia v Jimba and Executive Curtains no fresh notice was required despite postponements. The auction was properly advertised and conducted, with the Plaintiff the highest bidder at Kshs 2.6 million. Following Ngobit Estate v Carnegie and Willy Kimutai Kitilit v Michael Kibet, the court held the Plaintiff acquired good title, the Defendants having failed to prove fraud. The counterclaim was dismissed, no account ordered for the unsold Torosei land, and judgment entered for the Plaintiff with a permanent injunction, vacant possession after 90 days, and costs to the Plaintiff and the 3rd Defendant.

Key legal issues

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01

Service of statutory notices prior to exercise of statutory power of sale

Holding

The Chargor's family were duly served with the requisite notices; the statutory power of sale had crystallised and there was no need to re-issue fresh notices

Reasoning

The court traced the long history of default, statutory notices (11th February 1991), demands (14th March 1999), Notification of Sale (17th May 1999), and the 45-day Notice of Sale dated 25th September 2001 served on Major Shani, an adult family member, plus registered post to the family address obtained from a registered caution. Relying on Mbuthia v Jimba and Executive Curtains, it held no fresh notice was required despite postponements, and the RLA did not prescribe a notice format.

p. 6
02

Validity of the public auction

Holding

The auction was properly undertaken

Reasoning

The land was advertised in the newspaper on 10th December 2001; the auctioneer confirmed attendance by family representatives including Major Shani, five bidders, and the Plaintiff as highest bidder at Kshs 2.6 million with a Memorandum of Sale executed. The family produced no contrary valuation, never sought to stop the auction before it occurred, and did not sue to set it aside until their counterclaim. Following Bomet Beer Distributors, their remedy lay in damages, not setting aside.

p. 6
03

Whether the auction purchaser acquired a good title

Holding

The Plaintiff acquired a good title to the suit land

Reasoning

The Plaintiff was the highest bidder, paid a deposit of Kshs 650,000, obtained an extension of time to pay the balance with the bank's consent, obtained Land Control Board consent on 17th September 2002, and the Transfer by Chargee was registered on 22nd July 2004. Relying on Ngobit Estate Ltd v Carnegie and Willy Kimutai Kitilit v Michael Kibet, and applying the equities recognised in Kitilit, the court held the title could not be invalidated; the Defendants did not prove fraud or illegality.

p. 7
04

Entitlement to counterclaim relief including cancellation of title

Holding

The counterclaim failed; grounds for cancellation of the Plaintiff's title were not proved

Reasoning

Applying section 143 of the repealed Registered Land Act (replicated in section 80 of the Land Registration Act), the court found the 1st and 2nd Defendants had failed to prove fraud or misrepresentation warranting cancellation of the Plaintiff's registered title, and since the auction was properly conducted, setting aside was declined.

p. 7

Legal principles established

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  • Once a statutory notice has been issued and served, there is no legal requirement to repeat or re-issue a fresh notice merely because the auction is postponed
  • At the fall of the hammer in a public auction, the chargor's equity of redemption is extinguished and the only remedy for a dissatisfied chargor is a suit for general or special damages
  • Service of a notification of sale on an adult member of the chargor's family, or by registered post to the last known family address, satisfies Rule 15(c) of the Auctioneers Rules
  • A party alleging fraudulent or illegal acquisition of a registered title bears the burden of proving it; absent such proof the registered proprietor's title stands

Court orders

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  1. 1.A permanent injunction issued against the 1st and 2nd Defendants restraining them, their agents, employees and/or servants from trespassing, alienating, damaging and/or removing property or otherwise interfering with the Plaintiff's plot LTK/ENKARIAK–RONGENA/243
  2. 2.The 1st and 2nd Defendants jointly and/or severally directed to grant vacant possession of plot LTK/ENKARIAK–RONGENA/243 after 90 days from the date of the judgment, failing which eviction to issue
  3. 3.Costs of the suit awarded to the Plaintiff and the 3rd Defendant, to be borne by the 1st and 2nd Defendants

Authorities

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Legislation

  • Registered Land Act (repealed)section 74
  • Registered Land Act (repealed)section 143
  • Auctioneers Rules, 1997Rule 15
  • Land Registration Actsection 80
  • Land Control Actcontrolled transactions / consent requirements
  • Law of Contract Actsection 3(3)
  • Land Actsection 38(2)
  • Constitution of Kenya, 2010Article 10(2)(b)

Cases cited (17)

  • Michael Gitere & Another v Kenya Commercial Bank Limited
    (2018) eKLR
  • Gitau Muiruri v Standard Chartered Bank (K) Limited
    (2005) eKLR
  • Stephen Odabiah Kariuki Njoroge v Euro Bank Ltd, Registrar of Land, Peter Musango & Christine Muhoro
    (2001) eKLR
  • Stephen Boro Gitiha v Nicholas Ruthiru Gatoto & 2 others
    (2017) eKLR
  • Leah Mweru Waigwa v National Bank of Kenya Ltd
    (2015) eKLR
  • Elizabeth Wambui Njuguna v Housing Finance Co. of Kenya Limited
    (2006) eKLR
  • Jane Wairimu Ngure (Suing as administratrix of the Estate of Peter Ngure – deceased) v National Bank of Kenya Limited & 2 others
    (2019) eKLR
  • Albert Mario Corderio & Another v Vishram Shamji
    (2015) eKLR
  • Nationwide Finance Co. Ltd v Meck Industries Ltd & Michael Gerald Kimani
    (2001) eKLR
  • DNM v Ma K & 4 Others
    (2014) eKLR
  • Executive Curtains and Furnishings Limited v Family Finance Building Society
    (2007) eKLR
  • Zipporah Mwangi Njenga v Housing Finance Limited & Another
    (2014) eKLR
  • Mbuthia v Jimba Credit Finance Corporation & another
    [1988] eKLR
  • Moses Kibiego Yator v Eco Bank Limited
    (2014) eKLR
  • Bomet Beer Distributors Ltd & Anor. v Kenya Commercial Bank Ltd & 4 Ors
    (2005) eKLR
  • Ngobit Estate Ltd v Carnegie
    Civil Appeal No. 57 of 1981
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
Jurisdiction invoked
Original civil suit (land dispute) under the Environment and Land Court's first-instance jurisdiction; no specific constitutional provision cited

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, "Emmanuel Mathews v Jerusha Naimutie Shani & 2 Others [2020] KEELC 2487 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2487/eng@2020-05-21

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