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ELCDismissedBungoma ELC Appeal (formerly Bungoma CM-ELC No. 78 of 2020, formerly 128 of 2012)· [2025] KEELC 529 (KLR)

Mohammed & another (Suing as personal representatives of Ahamed Mohammed Khalid - Deceased) v Wafula & 4 others (Environment and Land Appeal 24 of 2022) [2025] KEELC 529 (KLR)

Environment and Land Court
11 February 2025
2,967 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Bungoma dismissed a property buyer's appeal because he could not prove the 2011 rates auction that supposedly gave him the plot.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Bungoma against the judgment of the trial Magistrate in Bungoma CM-ELC No. 78 of 2020 (formerly 128 of 2012). The Appellants, as Plaintiffs below, claimed they lawfully purchased plot Bungoma Township/291 at a public auction conducted by the Municipal Council of Bungoma (now County Government of Bungoma) after the original allottee, Bartholomew Wafula Lule, defaulted on rates. They sought removal of a caution, compulsory transfer of the plot, and alternatively compensation of Kshs. 3,000,000 for renovations. The 2nd Defendant, registered as proprietor in 2001 to hold in trust for herself and six siblings, counterclaimed for a declaration that the sale was null and void, rent arrears of Kshs. 504,000, damages and eviction. The Interested Parties, beneficiaries of the estate, also counterclaimed for registration of the property in the name of Carolyne Akinyi Wafula in trust. E.C. Cherono, ELC Judge, reviewed the record and affirmed the trial Magistrate's finding that the Appellants proved neither the fact, date, place nor publication of the auction, and that the Kshs. 3,000,000 claim failed as unproven special damages. The court found the Appellant failed a due diligence test - the search certificate showed Carolyne Akinyi Wafula as owner since 2001 - and condemned the County Council for purporting to auction the property without confirming ownership, acting illegally and without due process. The appeal was dismissed with costs.

Key legal issues

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01

Whether the Appellant proved the public auction of Bungoma Township/291

Holding

The Appellant failed to prove that the auction took place; no date, place or evidence of public notification was presented

Reasoning

The claim hinged on a purported purchase at a public auction pursuant to the statutory power of sale under the Rating Act. The plaint did not plead the date and place of the auction, and no evidence of publication or conduct of the auction was adduced. The trial Magistrate's finding on this seminal fact was affirmed, the burden of proof on a balance of probabilities not having been discharged.

p. 6
02

Whether the County Government of Bungoma lawfully exercised its statutory power of sale

Holding

The County Council and its predecessor acted illegally and unlawfully in purporting to auction the property without due process, having failed to verify the registered owner

Reasoning

The certificate of official search showed the property was registered in the name of Carolyne Akinyi Wafula on 12/3/2001, well before the 2011 purported auction. The County nonetheless advertised and sold against the deceased original allottee's name without confirming ownership at the lands office, rendering the purported exercise of the statutory power of sale under the Rating Act Cap. 267 illegal.

p. 6
03

Whether the trial Magistrate's judgment should be disturbed

Holding

The trial Magistrate properly evaluated and analysed the evidence and applied the applicable law; his findings were not faulted

Reasoning

On a first appeal the court considered the pleadings, proceedings and exhibits and found the trial Magistrate's evaluation of evidence and application of law sound. The judgment had correctly found that the auction was unproved and that the claim for Kshs. 3,000,000 in special damages failed for want of specific pleading and proof. The appeal was therefore devoid of merit.

p. 6

Legal principles established

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  • A public auction requires publication and proof that it was held publicly at a given date and time; a party asserting an auction bears the burden of proving it on a balance of probabilities
  • Special damages must be specifically pleaded and specifically proved
  • A purchaser must exercise due diligence, and a rating authority must confirm the registered owner before exercising its statutory power of sale

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.Orders accordingly

Authorities

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Legislation

  • Rating ActSections 17 & 18, Cap. 267 Laws of Kenya
On appeal from
Magistrates' Court (Environment and Land), Bungoma
Bungoma CM-ELC No. 78 of 2020 (formerly 128 of 2012)
Jurisdiction invoked
First appeal against the judgment of the trial Magistrate in Bungoma CM-ELC No. 78 of 2020

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, "Mohammed & another (Suing as personal representatives of Ahamed Mohammed Khalid - Deceased) v Wafula & 4 others (Environment and Land Appeal 24 of 2022) [2025] KEELC 529 (KLR)", Case Analysis (2025). Bungoma ELC Appeal (formerly Bungoma CM-ELC No. 78 of 2020, formerly 128 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/529/eng@2025-02-11

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