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ELCAllowedNot stated in the judgment as provided· [2023] KEELC 573 (KLR)

St. Teresa ACK Nanga Church v Odinga & 3 others (Environment & Land Case 239 of 2015) [2023] KEELC 573 (KLR)

Environment and Land Court (execution proceedings before E. Asati, Judge)
9 February 2023
EAE. Asati
826 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court lifted its own restriction on Kisumu land and formally transferred it to the highest bidder at a court-approved auction.

What this practically means

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Executive summary

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This was an unopposed notice of motion dated February 25, 2022 brought by the auctioneer, Alfred Kisiala Kiaya, under Order 22 Rules 67, 68 and 69 of the Civil Procedure Rules and Rule 17(5) and (6) of the Auctioneers Amendment Rules 2009. He sought lifting of a prohibitory order issued on September 3, 2019 restraining the Land Registrar Kisumu from transferring or charging land parcel Kisumu/Nyalenda "B"/2394, and a vesting order transferring the parcel to Festus Musoda Girure, the highest bidder at a public auction conducted on November 30, 2021 in execution of a decree. Although marked ex parte, affidavits of service by Alex Otieno Omaya showed service of the application and hearing notice on the respondents through their advocates, DOE Anyul & Co Advocates, who did not attend the hearing on February 2, 2023. The court verified from its record that the September 3, 2019 ruling sanctioned the attachment and sale, and that the auctioneer annexed his licence, notice of public auction, official search, 45-day redemption notice and newspaper advertisement demonstrating due process. The purchaser had paid the purchase price. Relying on Order 22 Rules 67 and 68 and Section 70 of the Land Registration Act, the court allowed the application: it lifted the prohibitory order, issued a vesting order in favour of Festus Musoda Girure, and made no order as to costs.

Key legal issues

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01

Whether to lift the prohibitory order and issue a vesting order following a court-sanctioned public auction

Holding

Yes. The sale was court-sanctioned, the auctioneer followed due process, the highest bidder paid the purchase price, and the application was unopposed despite service.

Reasoning

The court verified from its own record that its ruling of September 3, 2019 authorised attachment and sale of the parcel by public auction in execution of the decree. The auctioneer's supporting affidavit and annexures (licence, notice of public auction, official search, redemption notice and newspaper advertisement) demonstrated due process. The purchaser, Festus Musoda Girure, was the highest bidder and had paid the purchase price. Section 70 of the Land Registration Act permits removal of an inhibition by subsequent court order, enabling completion of the sale and transfer to the purchaser.

p. 2

Legal principles established

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  • A court may order the sale of immovable property in execution of decrees and may vest the sold property in the purchaser (Order 22 Rules 67 and 68, Civil Procedure Rules).
  • Under Section 70 of the Land Registration Act, an inhibition placed by court order can be removed by a subsequent order of the court.

Court orders

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  1. 1.The prohibitory order issued on September 3, 2019 restraining the Land Registrar Kisumu from transferring and or charging Kisumu/Nyalenda "B"/2394 is lifted
  2. 2.A vesting order is issued for the vesting and transfer of land parcel Kisumu/Nyalenda "B"/2394 to Mr Festus Musoda Girure of ID No xxxxx and PO Box 1242-40100 Kisumu forthwith
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rules 67, 68 and 69
  • Auctioneers Amendment RulesRule 17 (5) and (6)
  • Land Registration ActSection 70
Jurisdiction invoked
Order 22 Rules 67, 68 and 69 of the Civil Procedure Rules and Rule 17(5) and (6) of the Auctioneers Amendment Rules 2009; Section 70 of the Land Registration Act

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, "St. Teresa ACK Nanga Church v Odinga & 3 others (Environment & Land Case 239 of 2015) [2023] KEELC 573 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/573/eng@2023-02-09

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