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ELCDismissedNot stated in the extract (suit filed by Plaint dated 2nd November, 2016, amended 28th September, 2017)· [2024] KEELC 7091 (KLR)

Kabiru v Faulu Micro-Finance Bank Limited & 2 others (Environment & Land Case 178 of 2016) [2024] KEELC 7091 (KLR)

Environment and Land Court
31 October 2024
4,786 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court upheld KCB's auction of charged land, ruling that once statutory notices and valuation are done, a completed auction sale stands.

What this practically means

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Executive summary

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The Plaintiff charged land parcel Mwerua/Mukure/1673 to the 1st Defendant to secure a loan of Kshs 1,100,000/- advanced in 2014. Upon default the bank issued demand and statutory notices under Sections 90 and 96 of the Land Act, instructed the 2nd Defendant auctioneers, and on 7th October 2016 the property was auctioned; the 3rd Defendant's bid of Kshs 3,000,000/- (equal to the forced sale value) was the highest and was accepted, and the property was transferred to it. The Plaintiff sued seeking a declaration that the auction was void, cancellation of the 3rd Defendant's registration, an injunction, leave to sell the property privately, and alternatively special and general damages, alleging the property worth Kshs 7,500,000/- was sold at an undervalue through collusion. The 3rd Defendant raised a jurisdictional objection, already dismissed by Cherono, J in a ruling of 11th March 2022 which was not appealed, so the court held it had jurisdiction. The court found all statutory notices were duly served and the sale regularly conducted. It held a Section 97(2) valuation (obtained October 2015, market value Kshs 4 million, forced sale value Kshs 3 million) remains valid for up to twelve months, so no fresh valuation was required. The Plaintiff's post-auction valuation was distrusted as its valuer was not called, and no evidence of fraud or collusion was adduced; three bids were received at the auction. Following Joyce Wairimu Karanja, the court held the chargor's equity of redemption was extinguished on the fall of the hammer, any irregularity being remediable only in damages, and no statutory breach was proved. The suit was dismissed with costs to the 1st and 3rd Defendants on 31st October 2024.

Key legal issues

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01

Jurisdiction of the ELC over a dispute arising from realization of a charge

Holding

The ELC has jurisdiction because the claim, though arising from a charge, is for a declaration that the sale of land by public auction was fraudulent and void

Reasoning

The 3rd Defendant argued the dispute was commercial and belonged to the High Court. The court noted a preliminary objection on jurisdiction had already been dismissed by Cherono, J in a ruling of 11th March 2022, was not appealed, and the court could not sit on appeal over its own decision, adopting Lydia Nyambura Mbugua on the exclusivity of ELC jurisdiction.

p. 5
02

Lawfulness of the public auction

Holding

The auction was lawfully conducted; all statutory notices under Sections 90 and 96 of the Land Act were served

Reasoning

The Plaintiff admitted receiving the demand notice and notification of sale and admitted default. Once default occurred the chargee was entitled to realize the security provided due process was followed, and the evidence showed the statutory notices were issued and served before the 7th October 2016 auction.

p. 6
03

Whether the property was sold at an undervalue

Holding

No undervaluation; the sale at Kshs 3,000,000 conformed to the Forced Sale Value in the chargee's October 2015 valuation

Reasoning

The chargee complied with Section 97(2) by obtaining a valuation placing market value at Kshs 4 million and forced sale value at Kshs 3 million. The plaintiff's contrary valuation was obtained after the auction, its valuer was not called to testify, and she adduced no evidence of collusion. Three bids were received and the highest, meeting the forced sale value, was accepted.

04

Entitlement to damages

Holding

The Plaintiff is not entitled to damages because the chargee breached no statutory duty

Reasoning

Damages for an irregular sale presuppose a breach of the chargee's statutory duty to obtain the best reasonable price. Since the court found the sale regular and compliant with Sections 90, 96 and 97(2) of the Land Act, no breach arose and damages fall away.

p. 8

Legal principles established

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  • A chargor's remedy for an irregular auction sale lies in damages, not rescission of the concluded sale
  • A forced sale valuation obtained under Section 97(2) of the Land Act is valid for up to twelve months
  • Where a chargee accommodates a defaulting chargor on new terms which the chargor then defaults on, the chargee may re-initiate sale without re-issuing the statutory notice under Section 90
  • A purchaser at a properly conducted auction is protected and a party alleging fraud or collusion must prove it with evidence

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the 1st and 3rd Defendants

Authorities

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Legislation

  • Environment and Land Court ActSection 7
  • Land Act, 2012Section 80
  • Land Act, 2012Section 90
  • Land Act, 2012Section 96
  • Land Act, 2012Section 97(2)
  • Land Act, 2012Section 99
  • Constitution of Kenya, 2010Article 165(5)

Cases cited (7)

  • Bank of Africa Kenya Ltd & Another –vs- TSS Investment Ltd & 2 Others
    (2024) KECA 410 (KLR)
  • Lydia Nyambura Mbugua
  • Mary Atieno Nyamogo –vs- Barclays Bank of Kenya Ltd
    (2011) eKLR
  • Mafuta Products Ltd & another –vs- Barclays Bank & Another
    (2017) eKLR
  • Joyce Wairimu Karanja –vs- James Mburu Ngure & 3 Others
    (2018) eKLR
  • Basil Critocos –vs- National Bank of Kenya Ltd & Another
    (2022) KECA 541 (KLR)
  • Zum Zum Investment Limited –vs- Habib Bank Ltd
    (2014) eKLR
Jurisdiction invoked
Section 7 of the Environment and Land Court Act, 2011 (jurisdiction over disputes arising from charges over land and sale of charged land)

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, "Kabiru v Faulu Micro-Finance Bank Limited & 2 others (Environment & Land Case 178 of 2016) [2024] KEELC 7091 (KLR)", Case Analysis (2024). Not stated in the extract (suit filed by Plaint dated 2nd November, 2016, amended 28th September, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7091/eng@2024-10-31

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