Kaburu & 17 others v Kanyi & 5 others (Environment & Land Case E009 of 2024) [2025] KEELC 1159 (KLR)

Order 1 Rule 13(2) requires written authority signed by the party giving it and filed in the case. Monica Waruinu Njuguna annexed an authority signed only by the 4th, 5th, 6th and 15th Applicants. The court held that although the authority ought to have been signed by all 16 Applicants, the failure was not fatal and could be cured by amendment, in keeping with the obligation to render substantive justice under Article 159(2)(d) of the Constitution. The Preliminary Objection on this ground therefore failed.

Although jurisdiction may be raised at any time, including suo motu, principles of procedural fairness require parties be given an opportunity to be heard. Since the 2nd Respondent did not include the jurisdictional ground in its Notice of Preliminary Objection, the Applicants were denied an opportunity to respond. The court indicated the issue should be raised properly before the case is fixed for hearing.

The sale agreements showed some houses (A14 and A12) erected on parcels different from those alleged, and the Applicants did not rebut this. No Applicant annexed evidence of full payment of the purchase price. The bank conducted due diligence showing unencumbered titles, and the charge instrument showed no awareness of the Applicants' interests. Following Paul Gatete Wangai, Monica Waruguru Kamau and Willow Park, the Applicants' beneficial interest could not supersede the bank's interest as chargee.

The Applicants contended they would be rendered homeless if the statutory power of sale was exercised. The court held there is no privity of contract between the Applicants and the bank; any claim for breach lies against the 1st Defendant, and damages can be assessed at trial. Relying on Agricultural Finance Corporation v Lengetia and Willow Park, third-party contractual rights cannot be transposed onto the bank to defeat the chargee's statutory rights.