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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 9th October, 2020)· [2021] KEELC 1496 (KLR)

Daniel Kipsang Tanui v Green Systems Africa Limited [2021] KEELC 1496 (KLR)

Environment and Land Court
7 October 2021
SOS. Okong'o
2,189 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Nairobi court ordered a company to vacate an apartment it bought a house at auction, ruling unsupported fraud allegations don't justify a trial.

What this practically means

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Executive summary

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The Plaintiff applied by Notice of Motion dated 9th October 2020 under Order 36(1) of the Civil Procedure Rules, 2010 for summary judgment against the Defendant and costs, in a suit concerning Apartment No.2, First Floor, Block B on Title Number I.R 146380, L.R No. 209/20672, Upper Hill, Nairobi. The Plaintiff averred that he purchased the suit property at a public auction conducted on 12th March 2019 by Garam Investment Auctioneers on behalf of HFC Limited in exercise of its statutory power of sale after the Defendant defaulted on its charge, at a consideration of Kshs. 18,800,000/-, and was registered as proprietor in February 2020, but the Defendant's director refused to vacate. The Defendant opposed, alleging the sale was illegal and fraudulent, that statutory and auctioneer notice requirements were breached, that the property was undervalued, that the transfer occurred in collusion with the Plaintiff despite a court order, and that payments of Kshs. 996,359.88 and Kshs. 1,999,269.21 to HFC were ignored; it also sought to join HFC Limited as a third party and relied on authorities holding that a single triable issue entitles a defendant to defend. The court framed one issue: whether the threshold for summary judgment was met. It held that all allegations of irregularity and fraud were directed at HFC Limited, not the Plaintiff; prior suits against HFC had been abandoned; no evidence implicated the Plaintiff; and an intended third-party indemnity claim was not a defence. The court granted summary judgment, ordered the Defendant to vacate by 30th November 2021, failing which warrants of eviction would issue, awarded the Plaintiff the costs of the application, and deferred the costs of the suit.

Key legal issues

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01

Whether the Defendant raised triable issues entitling it to defend the suit

Holding

The Defendant had no arguable defence; allegations of fraud and irregularity were directed at HFC Limited, not the Plaintiff, and were unsupported by evidence

Reasoning

The court found the Plaintiff's case straightforward: he bought the suit property at a public auction in exercise of HFC Limited's statutory power of sale, paid the full purchase price and was registered as proprietor. The Defendant's allegations of defective notices, undervaluation and collusion were all aimed at HFC Limited, which was not a party, and prior suits against HFC had been abandoned. No evidence implicated the Plaintiff, and the intended third-party claim for indemnity was not a defence.

p. 2

Legal principles established

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  • A defendant who raises a bona fide triable issue must be given leave to defend; summary judgment issues only where the claim is undoubted and the defence is a sham
  • Mere allegations of fraud and collusion without any evidential basis do not entitle a defendant to defend a suit
  • A third-party claim for indemnity or compensation is not a defence to the plaintiff's claim

Court orders

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  1. 1.The Defendant, its Servants and/or agents shall vacate forthwith the premises known as Apartment No.2, First Floor, Block B, erected on Title Number I.R 146380, L.R No. 209/ 20672 and in any event not later than 30th November, 2021, in default of which warrants shall issue for the forceful eviction of the Defendant from the premises
  2. 2.The Plaintiff shall have the costs of the application while the costs of the suit shall await the determination of the other reliefs sought by the plaintiff in the plaint

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 36(1)
  • Land Actsection 90
  • Auctioneers RulesRule 16

Cases cited (11)

  • Taylor v Bolus
    (1981) KLR 536
  • Zola v Ralli Bros. Ltd.
    [1969] E.A. 691
  • Commercial Advertising and General Agencies Ltd. v. Qureishi
    [1985] KLR 458
  • Industrial and Commercial Development Corporation v Daber Enterprises Limited
    [2000] eKLR
  • Ternic Enterprises Limited v Waterfront Outlets Limited
    [2018] eKLR
  • Moi University v Vishva Builders Limited
    Civil Appeal No.296 of 2004 (unreported)
  • Gupta v Continental Builders Ltd
    [1976-80] 1 KLR 809
  • Wenlock v. Moloney and Others
    [1965] 1 W.L.R. 1238
  • Home and Overseas Insurance Co. Ltd. v. Mentor Insurance Co. (U.K.) Ltd. (In Liquidation)
    [1990] 1 W.L.R. 153
  • Balli Trading v. Afalona Shipping, The Coral
    [1993] 1 Lloyd's Rep. 1
  • Jacobs v. Booth's Distillery Co.
    (1901) L.T. 262
Jurisdiction invoked
Order 36(1) of the Civil Procedure Rules, 2010

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, "Daniel Kipsang Tanui v Green Systems Africa Limited [2021] KEELC 1496 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 9th October, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1496/eng@2021-10-07

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