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ELCAllowedOriginating Summons dated 24th March, 2021· [2021] KEELC 1702 (KLR)

Mursal Hajj Ali v Stanley Maina Macharia [2021] KEELC 1702 (KLR)

Environment and Land Court
4 October 2021
COChristine Ochieng
2,939 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that an auction buyer with a registered title owns the land outright, even if the former owner still occupies it.

What this practically means

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Executive summary

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The Applicant, Mursal Hajj Ali, brought an Originating Summons dated 24th March 2021 under Order 22 Rule 80, Order 37 Rule 3 and Order 40 Rule 1 of the Civil Procedure Rules and Section 99 of the Land Act, seeking eviction orders, vacant possession, and injunctive relief over LR No. KAJIADO/KITENGELA/41040 and 41044, plus police security and costs. He deposed that the Respondent had charged the suit lands to Springboard Capital Limited, defaulted, and that the lands were advertised and sold by public auction on 22nd December 2020, where the Applicant emerged highest bidder at Kshs. 2,400,000/= and was registered as proprietor on 19th February 2021. The Respondent opposed through a Notice of Preliminary Objection, Grounds of Opposition and Replying Affidavit, contending the summons was grossly defective, should have been brought by plaint, that no contract of sale existed between the parties, and that he had challenged the auction in proceedings at the Ngong Principal Magistrate's Court where interim orders had issued; his family and matrimonial home was on the land. The court framed three issues: ownership, eviction, and costs. It held that under Article 159(2)(d) of the Constitution and Section 19(1) of the Environment and Land Court Act the proceedings were validly instituted. Applying Section 99 of the Land Act and Section 26(1) of the Land Registration Act, the court found the Applicant was the absolute and indefeasible registered proprietor, protected as an auction purchaser, and that the Respondent's remedy lay in damages against the chargee. The court allowed the application, issuing a 90-day eviction order, a permanent injunction, police security for enforcement, and costs to the Applicant.

Key legal issues

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01

Whether the proceedings, instituted by Originating Summons, were procedurally valid despite the Respondent's preliminary objection that a Plaint was required.

Holding

The proceedings were validly instituted; the court was guided by Article 159(2)(d) and Section 19(1) of the Environment and Land Court Act to disregard technicalities.

Reasoning

The court noted Article 159(2)(d) of the Constitution requires justice to be administered without undue regard to procedural technicalities, and Section 19(1) of the Environment and Land Court Act directs the court to act expeditiously and without undue regard to technicalities. Associating itself with the decision in Republic v District Land Registrar, Uasin Gishu, the court held the Applicant relied on proper legal procedures.

p. 2
02

Whether the Applicant, as auction purchaser, is entitled to vacant possession and eviction of the Respondent notwithstanding the challenge to the auction pending at Ngong Principal Magistrate's Court.

Holding

Yes. The Applicant is the registered proprietor protected by Sections 24, 25 and 26 of the Land Registration Act and Section 99 of the Land Act; the Respondent's remedy is damages against the chargee, not refusal to vacate.

Reasoning

The court found the Applicant purchased the suit lands at public auction, paid the full purchase price, and was registered as proprietor on 19th February 2021. Under Section 99 of the Land Act the purchaser is protected even with notice of irregularity absent fraud on his part. Section 26(1) of the Land Registration Act makes his certificate prima facie evidence of absolute and indefeasible ownership. The Respondent's remedy lies in damages against the chargee.

p. 4
03

Who should bear the costs of the suit.

Holding

The Applicant, having been inconvenienced by the Respondent's refusal to vacate, is entitled to costs.

Reasoning

The court found the Respondent's defiance in refusing to move from the suit lands inconvenienced the Applicant and therefore awarded the Applicant costs of the application.

p. 4

Legal principles established

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  • Once a property is knocked down and sold in a public auction by a chargee in exercise of its statutory power of sale, the equity of redemption of the chargor is extinguished and the only remedy for a dissatisfied chargor is damages.
  • A purchaser of charged land from a chargee is protected under Section 99 of the Land Act and cannot be held liable for irregularities in the sale; his remedy lies in damages against the person exercising the power of sale.

Court orders

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  1. 1.An eviction order issued against the Respondent directing him to deliver vacant possession of LR No. KAJIADO/KITENGELA/41040 and LR No. KAJIADO/KITENGELA/41044 to the Applicant within Ninety (90) days from the date of judgment.
  2. 2.An order of injunction restraining the Respondents by themselves, servants, employees, agents or any other persons acting under their instructions or interests from entering, interfering with the Applicant's entry, occupation and possession of LR No. KAJIADO/KITENGELA/41040 and LR No. KAJIADO/KITENGELA/41044.
  3. 3.The Officer in Charge of Police Station in Ongata Rongai area to provide security to ensure compliance with orders (a) and (b).
  4. 4.The Applicant granted costs of the application.

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 80
  • Civil Procedure RulesOrder 37 Rule 3
  • Civil Procedure RulesOrder 40 Rule 1
  • Land ActSection 99
  • Land ActSection 98(4)
  • Environment and Land Court ActSection 19(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 24(a)
  • Land Registration ActSections 24, 25 and 26

Cases cited (12)

  • Bomet Beer Distributors Ltd V Kenya Commercial Bank Limited & 4 others
    (2005) eKLR
  • Michael Matu V Martin Luther King Andati
    (2017) eKLR
  • Simon Njoroge Mburu V Consolidated Bank of Kenya Ltd
    (2014) eKLR
  • Eric Timothy Balongo V Paul Siteya Loorkipony
    (2019) eKLR
  • Cooperative Merchant Bank Ltd V George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
  • Abdullahi Sheikh Ahmed V Mandera County Government
    (2019) eKLR
  • Kenya Ports Authority V Kenya Power & Lighting Co. Limited
    (2012) eKLR
  • Mukhisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd
    (1969)
  • Gideon Sitelu Konchellah V Julius Lekakeny Ole Sunkuli & 2 others
    Civil Application No. 26 of 2018 (2018) eKLR
  • Margaret Nyiha Gatambia & 2 Others V Peninah Ngechi Njaaga & 3 Others
    (2019) eKLR
  • Republic Vs. District Land Registrar, Uasin Gishu & Anor
    (2014) eKLR
  • WILLY KIPSONGOK MOROGO v ALBERT K. MOROGO
    (2017) eKLR
Jurisdiction invoked
Order 22 Rule 80; Order 37 Rule 3; Order 40 Rule 1 of the Civil Procedure Rules; Section 99 of the Land Act; Environment and Land Court Act Section 19(1)

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, "Mursal Hajj Ali v Stanley Maina Macharia [2021] KEELC 1702 (KLR)", Case Analysis (2021). Originating Summons dated 24th March, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1702/eng@2021-10-04

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