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ELCAllowedNotice of Motion dated 14th June 2023 (Nyeri)· [2024] KEELC 4079 (KLR)

Gituru v Kinyua & another (Environment and Land Miscellaneous Application E013 of 2023) [2024] KEELC 4079 (KLR)

Environment and Land Court
9 May 2024
3,815 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Nyeri Environment and Land Court confirmed that a genuine auction buyer of charged land owns it outright and can evict anyone still occupying it.

What this practically means

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Executive summary

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The Applicant moved the Court by Notice of Motion dated 14th June 2023 seeking eviction of the 1st and 2nd Respondents from L.R No. 7623/4 (I.R Number 21615) at Mweiga, Nyeri, delivery of vacant possession, police security and costs. His case was that the 1st Respondent charged the land to Consolidated Bank of Kenya Limited in 2011; after protracted litigation and failed attempts to halt the sale, the Bank advertised the property and the Applicant emerged the highest bidder at Kshs.21,800,000/- at an auction on 9th September 2022, paid in full, and was registered as owner on 11th April 2023, but the Respondents refused to vacate. The Respondents raised a Preliminary Objection asserting a status quo order in Nyeri HCCA No. 14 of 2023, a consent in a Rent Restriction case, and sub-judice given pending litigation in Nyeri CMCC No. 289 of 2022; the 2nd Respondent alleged fraud and that no auction occurred. Applying the Mukhisa Biscuits definition, the Court held the objection rested on disputed facts and could not stand; the sub-judice ground failed because the Applicant was not a party to the cited proceedings. On the merits, the Court found the Applicant a protected purchaser under Section 99 of the Land Act with no duty to inquire into the sale's regularity, held the equity of redemption was extinguished on the knock-down, and found no proof of fraud. The Preliminary Objection was dismissed and the Motion allowed in Prayers 3, 4 and 5, with costs to the Applicant.

Key legal issues

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01

Whether the Preliminary Objection (status quo order, consent, sub-judice, competency) merited striking out the Application

Holding

The objection was dismissed; none of the grounds amounted to a pure point of law.

Reasoning

Applying Mukhisa Biscuits, grounds requiring ascertainment of facts (existence of a consent, the Applicant's party status in other suits) are not preliminary objections. The status quo order post-dated the Applicant's purchase, and no adopted consent order was produced.

p. 5
02

Whether the sub-judice doctrine under Section 6 of the Civil Procedure Act barred the suit

Holding

Sub-judice was not established; the Applicant was not a party to the pending suits.

Reasoning

Applying the Supreme Court's statement of the doctrine's elements, the Applicant was not shown to be a party to CMCC No. 289 of 2022 or the appeal, his joinder application being pending. Determining whether issues are directly and substantially in issue requires probing evidence, incompatible with a preliminary objection.

p. 5
03

Whether the Applicant was entitled to eviction orders against the Respondents

Holding

Yes; the Applicant proved the auction purchase and registration, and no evidence of fraud was presented.

Reasoning

The 2nd Respondent's denials of the auction were unsupported; the Applicant deposited a banker's cheque, was the highest bidder, executed transfer forms and was registered on 11th April 2023. Section 99 of the Land Act protects him without duty to inquire, and the equity of redemption was extinguished on the sale.

p. 6

Legal principles established

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  • A preliminary objection cannot be founded on disputed facts requiring ascertainment or the exercise of judicial discretion.
  • A purchaser at a chargee's auction becomes the legal owner on acceptance of the bid and is entitled to immediate possession.
  • A purchaser of charged land under Section 99 of the Land Act need not inquire into the regularity of the sale and is protected absent fraud of which he has notice.
  • A chargor dissatisfied with the conduct of the sale may only sue for damages.

Court orders

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  1. 1.The Respondent's Preliminary Objection dated 17th July, 2023 is hereby dismissed.
  2. 2.The Applicant's Notice of Motion dated 14th June, 2023 is hereby allowed in terms of Prayer No. 3, 4 and 5 thereof (eviction orders, delivery of vacant possession, and security by the Officer, Mweiga Police Station).
  3. 3.The Applicant shall have the costs of the Application.

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Land Act, No. 6 of 2012Section 99(1), (2), (3)

Cases cited (3)

  • Mukhisa Biscuits Manufacturing Company Limited -vs- West End Distributors Limited
    (1969) EA 696
  • Kenya National Commission of Human Rights -vs- The Attorney General, the Independent Electoral & Boundaries Commission & 16 Others
    (2020) eKLR
  • Margaret Wachu Karori -vs- John Waweru Ribiro
    (2021) eKLR
Jurisdiction invoked
Original jurisdiction over land (eviction from suit land L.R No. 7623/4 (I.R Number 21615)); Land Act, No. 6 of 2012

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, "Gituru v Kinyua & another (Environment and Land Miscellaneous Application E013 of 2023) [2024] KEELC 4079 (KLR)", Case Analysis (2024). Notice of Motion dated 14th June 2023 (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4079/eng@2024-05-09

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