Issa v Kantaria & 4 others (Land Case E080 of 2025) [2025] KEELC 4493 (KLR)
The bottom line
#A Kenyan court refused to stop an eviction after a court-ordered auction, holding that valid court sale orders override an unregistered lease.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an interlocutory injunction should issue restraining the Defendants from the suit property pending outcome of the suit
- 2.Whether the proceeds of the auction should be deposited in Court
Key legal issues
#Whether the plaintiff established a prima facie case for an interlocutory injunction
No prima facie case was established as the suit property was sold by public auction pursuant to orders in Divorce Case No. 6 of 1997 in execution of a Court of Appeal judgment
Applying Giella v Cassman Brown and the definition of a prima facie case in Mrao v First American Bank, the court held that existing orders of courts of competent jurisdiction for the auction, which had been effected, overrode the lease terms relied on. The plaintiff also failed to explain why she did not bid at the auction, which was twice advertised in the Daily Nation.
Whether an interlocutory mandatory injunction (deposit of auction proceeds in court) should issue
Refused; no special or exceptional circumstances demonstrated
The court applied Nation Media Group & 2 others v John Harun Mwau, which requires a higher standard than for a prohibitory injunction: exceptional and special circumstances, and the clearest of cases. Apart from being a lessee of property sold under a court order, the plaintiff showed no such circumstances.
Whether the remaining Giella limbs needed consideration
Not considered; where no prima facie case is established, irreparable injury and balance of convenience need no consideration
Relying on Nguruman Ltd v Jan Bonde Nielsen, the court declined to deal with the other two limbs of the injunction test once it found no prima facie case.
Legal principles established
#- Once property is sold by public auction, the only remedy for an owner or interested person is to sue for damages if the auction was improperly conducted
- Sale of property pursuant to orders of a court of competent jurisdiction overrides the terms of an unregistered lease relied on by an occupier
Court orders
#- 1.The Notice of Motion application dated 24th February 2025 is unmerited and is disallowed
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act over the suit land Title Number LR/209/8343/151, South 'C'
Relief refused
#Interlocutory injunction restraining eviction pending hearing of the main suit
No prima facie case established; the property was sold pursuant to orders of a court of competent jurisdiction which override the unregistered lease
Deposit of auction proceeds in court / mandatory injunction
No special or exceptional circumstances shown to justify an interlocutory mandatory injunction
Costs
Each party to bear their own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances, I find the Notice of Motion application dated the 24th February 2025 unmerited and will disallow it.
Each party to bear their own costs.
It is my considered view that since the suit property was to be sold pursuant to orders issued in High Court Divorce Case No. 6 of 1997, on 5th November 2024 in execution of a Court of Appeal judgment issued in Civil Appeal No. 139 of 2010, this overrides the terms of the purported Lease, which the Plaintifi seeks to rely on.
it is trite that auctioning of property is governed by the Auctioneers Rules and once property is sold by public auction, the only remedy an owner or a person who has an interest in it has, is to sue for damages if the auction was not properly undertaken.
Issues in the judgment
#The case number of this suit is not stated anywhere in the judgment
Typographical rendering throughout - 'Plaintifi' for 'Plaintiff' and 'afidavit' for 'affidavit', indicating an OCR-scanned source
The Defendants' submissions refer inconsistently to 'Civil Appeal No. 39 of 2019' whereas the body of the judgment repeatedly refers to 'Civil Appeal No. 139 of 2010'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Issa v Kantaria & 4 others (Land Case E080 of 2025) [2025] KEELC 4493 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4493/eng@2025-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.