Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment· [2022] KEELC 3543 (KLR)

Jacinta Njoki Wakaba (Suing As the Legal Representative of the Estate of the Late Daniel Wakaba Gachoki v Aberdare Farmers Sacco Limited & 3 others (Environment & Land Case 210 of 2018) [2022] KEELC 3543 (KLR)

Environment and Land Court
26 May 2022
6,147 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

#

A Kenyan court cancelled an Sacco's sale of a deceased borrower's land, ruling the auction was void because proper statutory notices were never lawfully served.

What this practically means

#

Executive summary

#
This long-running suit concerned the sale of LR Nyandarua/Tulaga/2949, charged to the 1st defendant Sacco by the late Daniel Wakaba Gachoki, exercised by the 1st and 2nd defendants through a purported statutory power of sale in 2008 while the chargor was deceased and before any grant of representation had been taken out. The plaintiff, the deceased's widow and later administrator of his estate, sought declarations that the notices and sale were null and void, reinstatement of the title to the estate, and damages in the alternative. The 1st and 2nd defendants counterclaimed for Ksh 889,974.85; the 3rd and 4th defendants, purchasers at the sale, defended their title as bona fide purchasers and counterclaimed for eviction and indemnity. The court found the statutory notice defective: it was served on a deceased chargor whose address in the notice belonged to the Sacco, posting was unproved, no redemption notice under the Auctioneers' Rules was issued, and the notification of sale issued before the three-month notice period expired. Following Livingstone Mwangi Gichora and Nyangilo Ochieng, the court declared the sale null and void ab initio, distinguished the bona fide purchaser authorities relied on by the purchasers as the chargor there was alive, and cancelled the purchasers' title, reinstating the estate. The Sacco's counterclaim failed except for the admitted sum of Ksh 235,530/= payable by the plaintiff within 90 days, failing which interest accrues at court rates, after which a discharge of charge must issue. The purchasers were found entitled to a refund of Ksh 1,023,964.30 from the 1st and 2nd defendants but were denied indemnity against the plaintiff. The 1st and 2nd defendants bear the plaintiff's and purchasers' costs; each other party bears their own costs.

Key legal issues

#
01

Validity of exercise of statutory power of sale against a deceased chargor with no grant of representation

Holding

The sale was null and void ab initio; there was legally no one to serve with the statutory notice and the statutory power of sale never accrued

Reasoning

The statutory notice issued on 30/11/2007 ran for three months to March 2008, but the notification of sale was dated 21/2/2008, before expiry. The chargor died in 2006 and no representation had been raised, so service could not be effected on anyone capable of exercising the equity of redemption. Following Livingstone Mwangi Gichora, the court held the chargee had no one lawfully to deal with and the sale was fraudulent and void.

p. 6
02

Proof of service of statutory notices and redemption notice

Holding

Actual service and posting not proved; address belonged to the chargee and the postage slip bore no addressee details; no redemption notice under Rule 15 of the Auctioneers' Rules

Reasoning

DW1 admitted the address in the statutory notice belonged to the 1st defendant, and the certificate of posting did not indicate the name or postal address of the addressee. The court adopted Nyangilo Ochieng on proof of posting. The chargee also failed to demonstrate that any redemption notice under Rule 15 of the Auctioneers' Rules was issued, further vitiating the sale.

p. 7
03

Bona fide purchaser defence and cancellation of title

Holding

The defence of innocent purchase was rejected; the cited authorities were distinguished as the chargors there were alive; title of the 3rd and 4th defendants cancelled

Reasoning

The 3rd and 4th defendants relied on authorities holding that a valid sale extinguishes the equity of redemption, but those cases involved chargors who had opportunity to redeem. Here the chargor was deceased with no administrator, so the equity of redemption could not be exercised and the clogging rule was offended. A void sale cannot pass proprietorship, so the purchasers' title was liable to cancellation despite their innocence.

p. 8
04

Proof of the 1st defendant's counterclaim

Holding

The counterclaim for Ksh 889,974.85 was not proved; only the admitted debt of Ksh 235,530/= was awarded, without contractual interest, with a 90-day grace period

Reasoning

The claim was liquidated and required production of loan records and computations, which the 1st defendant, holding those records, failed to produce. It also had no evidence the purchaser's money was remitted to it. The court relied on the plaintiff's unchallenged exhibit showing a debt of Ksh 235,530/= as at November 2005 and declined to apply 17% contractual interest given the chargee's conduct.

p. 9
05

3rd and 4th defendants' indemnity claim

Holding

Indemnity against the plaintiff refused, but the claim for refund of Ksh 1,023,964.30 against the 1st and 2nd defendants succeeded

Reasoning

The plaintiff and the purchasers were both victims of the 1st and 2nd defendants' schemes, so indemnifying the purchasers against the plaintiff would be illogical and unjust. However, the sum of Ksh 1,023,964.30 paid to the auctioneer was corroborated by two letters under the hand of Jesse M. Gitau of Gallant Auctioneers, so the refund claim against the 1st and 2nd defendants was established.

p. 9

Legal principles established

#
  • An account of a deceased person cannot be drawn upon or money transferred until probate or letters of administration have been granted and registered
  • In the absence of proof of posting/service of statutory notices, a sale under statutory power of sale is void
  • The equity of redemption shall not be clogged
  • A chargee whose statutory power of sale has not accrued has no interest to transfer; a purported sale leaves the purchaser without valid interest and constitutes unjust enrichment

Court orders

#
  1. 1.A declaration that both the purported statutory notice dated 14/8/2007 and the notification of sale dated 22/2/2008 issued in respect of LR NO Nyandarua/Tulaga/2949 are null and void and they are hereby cancelled
  2. 2.The sale and transfer of LR NO Nyandarua/Tulaga/2949 by Aberdare Farmers Sacco Limited to Milton Gitau Gichuru and Jane Njeri was unprocedural, null and void and is hereby cancelled
  3. 3.The Land Registrar shall reinstate the Estate of Daniel Wakaba Gachoki (deceased) through its administrator as the legal proprietor of LR NO Nyandarua/Tulaga/2949
  4. 4.The plaintiff shall within 90 days of judgment pay the 1st defendant Ksh 235,530/= in full and final settlement of the loan, failing which interest at court rates shall accrue until payment in full
  5. 5.Within 30 days of payment in full, the 1st defendant shall prepare at its cost a discharge of charge and release it to the plaintiff together with the original title document for registration at the plaintiff's own cost
  6. 6.The 1st and 2nd defendants shall jointly and severally bear the costs of the suit of the plaintiff and the 3rd and 4th defendants; every other party shall bear their own costs

Authorities

#

Legislation

  • Registered Land Act (Cap 300) (repealed)section 74
  • Registered Land Act (Cap 300) (repealed)section 77
  • Land Act, 2012section 98
  • Auctioneers Act (Cap 526)Rules 11 and 15(d) of the Auctioneers' Rules

Cases cited (7)

  • Livingstone Mwangi Gichora V Family Finance Building Society
    [2002] eKLR
  • Nyangilo Ochieng & Another Vs Fanuel B Ochieng & 2 others
    [1996] eKLR
  • Commercial Interior Ltd and Another Vs Equity Bank Ltd & 2 Others
    [2015] eKLR
  • Jose Estates Ltd Vs Muthumu Farm Ltd & 2 others
    2019 eKLR
  • Kazungu Fondo Shutu & Another Vs Japhet Noti Charo & Another
    [2021] eKLR
  • Lawrence Mukiri Vs The Attorney General & 4 Others
    [2013] eKLR
  • Eunice Grace Njambi Kamall & another Vs the Attorney General & 5 others
    Civil Suit 976 of 2012
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (not expressly stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jacinta Njoki Wakaba (Suing As the Legal Representative of the Estate of the Late Daniel Wakaba Gachoki v Aberdare Farmers Sacco Limited & 3 others (Environment & Land Case 210 of 2018) [2022] KEELC 3543 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3543/eng@2022-05-26

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