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ELCAllowedELC No. 6 of 2017 (Originating Summons dated 9th March 2020)· [2021] KEELC 702 (KLR)

Bett v Koech (Environment and Land Case 11 of 2020) [2021] KEELC 702 (KLR)

Environment and Land Court
11 November 2021
961 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that buyers at court auctions get title through a vesting order unless the losing party appeals in time.

What this practically means

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Executive summary

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The Applicant filed an Originating Summons under Order 37 Rules 1 and 3 of the Civil Procedure Rules seeking vesting orders declaring him proprietor of LR No. Kericho/Chemoiben/693, Litein, pursuant to instructions issued in Kericho CMCC No. 185 of 2018 (Thomas Sambu v Bernard Koech). He had emerged the highest bidder at a public auction on 17th January 2020 in execution of the decree, paid Ksh 325,500 (25% of the purchase price), completed the balance of Ksh 1,087,500 and obtained a certificate of sale on 3rd February 2020. The Respondent opposed via a replying affidavit, deponing that he never participated in the subordinate court proceedings, was not served with a notice of entry of judgment, notice to show cause or notice of the terms of sale, and only learnt of the sale when served with the present Originating Summons. He noted a consent in ELC No. 6 of 2017 obliging him to transfer only 0.25 acres of the parcel, and stated he had applied before the trial court to set aside its judgment and consequential orders. The Applicant's submissions showed that the Respondent's application to set aside was dismissed with costs by a ruling of 18th December 2020, and no appeal was lodged. The Respondent filed no submissions. Justice Oundo held that the Respondent's allegations of non-service and unfair hearing remained mere allegations absent an appeal, that the court was not sitting as an appellate court, and that the application was allowed as prayed. A vesting order issued declaring the parcel registered to the Applicant, with costs in the cause.

Key legal issues

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01

Effect of failure to appeal against subordinate court proceedings and sale

Holding

The Respondent's allegations of non-service and unfair hearing remain mere allegations absent an appeal; this Court cannot sit as an appellate court over the subordinate court

Reasoning

The Respondent deponed that he never participated in the subordinate court proceedings and was not served with notices, but he never sought annulment by appeal. Almost two years after the sale, no appeal had been filed, so the court could not investigate the allegations. The application before it was not one for review, and the ELC was not sitting as an appellate court over the magistrate's court.

p. 2
02

Entitlement to vesting order following court auction

Holding

A purchaser who emerged as highest bidder, paid the deposit, completed the purchase price and obtained a certificate of sale is entitled to a vesting order

Reasoning

The Applicant purchased the suit land at a public auction advertised in execution of a decree, paid 25% of the purchase price, completed the balance and was issued a certificate of sale on 3rd February 2020 determining the sale as absolute. The Respondent's application to set aside the underlying judgment, decree and consequential orders had been dismissed with costs on 18th December 2020 and no appeal was lodged.

p. 2

Legal principles established

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  • Where a purchaser at a court-initiated auction has fulfilled the terms and conditions of sale and no appeal has been filed challenging the sale, the court is justified in issuing a vesting order

Court orders

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  1. 1.A vesting order issued declaring all that parcel of land known and described as LR No. Kericho/Chemoiben/693 situate within Litein to be registered to the Applicant Benard Kiprono Bett
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 1 & 3
Jurisdiction invoked
Order 37 Rule 1 & 3 of the 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, "Bett v Koech (Environment and Land Case 11 of 2020) [2021] KEELC 702 (KLR)", Case Analysis (2021). ELC No. 6 of 2017 (Originating Summons dated 9th March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/702/eng@2021-11-11

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