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ELCAllowedEnvironment & Land Case E002 of 2023· [2024] KEELC 304 (KLR)

Kamuri v Awino (Environment & Land Case E002 of 2023) [2024] KEELC 304 (KLR)

Environment and Land Court
30 January 2024
2,201 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 confirmed that a bank auction buyer owns the property outright, ordering the former owner to vacate within 45 days.

What this practically means

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Executive summary

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The Applicant, Evanson Njoroge Kamuri, filed an Originating Summons under Order 37 of the Civil Procedure Rules seeking vacant possession of Maisonette No. 531 on L.R. No. 209/2049, Nairobi, which he bought at a public auction conducted by Absa Bank Kenya PLC on 8th March 2023. The Respondent, Johnson Otieno Awino, the previous owner, refused to vacate, alleging irregularities and collusion in the auction, non-payment of stamp duty, and referring to a pending High Court case (HCCC E118 of 2023) challenging the auction; he sought dismissal or stay of the suit. The court expunged the Respondent's further affidavit filed out of time and without service, contrary to directions of 12th October 2023, holding that litigation is not a game of tricks. The court framed two issues: entitlement to vacant possession and costs. It held that the Originating Summons procedure was proper for this matter, that fraud must be specifically pleaded and was not, and that under section 99 of the Land Act the Respondent's only remedy for any irregular sale lies in damages against the bank. Relying on the Majanja J ruling in the High Court case and on Mbuthia v Jimba Credit Finance Corporation, the court found the equity of redemption was extinguished at the fall of the hammer and the Respondent had no cause of action against the Applicant. The Respondent was ordered to grant vacant possession within 45 days, failing which eviction could proceed with police or court bailiff assistance. The Applicant was awarded the costs of the suit.

Key legal issues

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01

Whether the Applicant is entitled to vacant possession/eviction

Holding

Yes. The Applicant lawfully purchased the suit property at a public auction, title was registered in his name, and the Respondent's equity of redemption was extinguished at the fall of the hammer.

Reasoning

The Applicant purchased the property from Absa Bank at a public auction on 8th March 2023 and exhibited a title registered in his name. The Respondent did not dispute the auction or sale in his replying affidavit, and fraud was not specifically pleaded or particularised there. Under section 99(4) of the Land Act, the Respondent's remedy for any irregularity lies in damages against the bank, and the High Court ruling confirmed his right of redemption was extinguished. The claim was suitable for Originating Summons procedure.

p. 5
02

Whether the Respondent's unpleaded allegations of fraud could defeat the claim

Holding

No. Fraud was raised only in submissions, not pleaded and particularised in the replying affidavit, and cannot be inferred from facts.

Reasoning

The court applied the rule from Vijay Morjaria v Nansingh Makhusingh Darbar that fraud must be specifically pleaded with particulars on the face of the pleading and distinctly proved. The Respondent first raised fraud in submissions as a reaction to the Applicant's reliance on section 26 of the Land Registration Act. Since the replying affidavit contained no specific plea of fraud, those allegations could not be considered.

p. 4
03

Whether the matter should be stayed pending the High Court case

Holding

No formal application for stay was made, and the High Court matter was materially and substantially different.

Reasoning

The Respondent merely suggested in his replying affidavit that the matter should await the High Court decision in HCCC E118 of 2023 but made no formal application for stay. Moreover, the Respondent had no cause of action against the Applicant; his claim, if any, was for damages against the bank, against whom he had already filed suit. The two matters were therefore not the same.

p. 4
04

Treatment of the Respondent's further affidavit filed out of time and without service

Holding

Expunged from the record pursuant to the court's inherent authority, as it breached the 12th October 2023 directions and denied the Applicant a chance to respond.

Reasoning

The Respondent filed a further affidavit on 28th November 2023 after the Applicant had filed submissions, without evidence of service and contrary to the court's directions of 12th October 2023. The court held this was contemptuous of its directions and an attempt to outsmart the opposing party, and exercising its inherent authority expunged it, proceeding only on the supporting and replying affidavits and submissions on record.

p. 3

Legal principles established

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  • Fraud must be specifically pleaded and its particulars stated on the face of the pleading; fraudulent conduct must be distinctly alleged and distinctly proved.
  • A sale by public auction extinguishes the equity of redemption at the fall of the hammer, whether or not the property is transferred to the purchaser.
  • A purchaser prejudiced by an irregular exercise of statutory power of sale is protected by section 99 of the Land Act, with damages as the only remedy.
  • Litigation must be conducted candidly; parties must not outsmart each other.

Court orders

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  1. 1.The Respondent is directed to grant vacant possession of Maisonette No. 531 Erected On L.R. No. 209/2049 (Original 209/12875/121) in Nairobi to the Applicant within 45 days from the date of the judgment
  2. 2.Failing compliance, the Applicant is at liberty to evict the Respondent without further reference to the court and with the assistance of the Police or court bailiff
  3. 3.The Applicant shall have the costs of the suit
  4. 4.The Respondent's further affidavit filed on 28th November, 2023 is expunged from the record

Authorities

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Legislation

  • Civil Procedure RulesOrder 37, rule 3
  • Land Registration ActSection 26
  • Land ActSection 99, including sub-section (4)

Cases cited (7)

  • Satya Bhama Gandhi v DPP and 3 Others
    [2018] eKLR
  • John W. Wephukulu v Secretary Board of Governors, Burn School
    [2005] eKLR
  • Kuria Kiarie and 2 Others v Sammy Magera
    [2018] eKLR
  • Vijay Morjaria v Nansingh Makhusingh Darbar & another
    [2000] eKLR
  • High Court Commercial Division case No. E118/2023 [2023] KEHC 19346 (eKLR) (Commercial & Tax) 30th June, 2023 (Reg) (ruling by Justice Majanja)
    [2023] KEHC 19346 (eKLR)
  • Kamulu Academy Ltd and another v BAT (K) Ltd & 2 others
    [2018] eKLR
  • Mbuthia v Jimba Credit Finance Corporation & ano
    [1986-1989] I EA 340 (CAK)
Jurisdiction invoked
Order 37 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kamuri v Awino (Environment & Land Case E002 of 2023) [2024] KEELC 304 (KLR)", Case Analysis (2024). Environment & Land Case E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/304/eng@2024-01-30

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