Prime Bank Limited v DJ Lowe & Company Limited & another (Environment and Land Case 142 of 2018) [2025] KEELC 7222 (KLR)
The bottom line
#A Mombasa court confirmed an auction buyer's land title, but refused money claims because neither side proved their damages properly.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved its registered title to the suit property
The plaintiff proved its claim as the current registered owner on a balance of probabilities, based on the extract of title and certificate of search; the 1st defendant never succeeded in impeaching the auction sale and transfer
The plaintiff purchased the suit property at a public auction in 2011 and, when the registrar hesitated, obtained a court order compelling registration in Mombasa ELC JR No.29 of 2016. The 1st defendant had litigated the auction repeatedly and failed; one suit was struck out as an abuse of process by Justice M. K. Ibrahim in 2011. On the documentary title evidence the court was satisfied ownership vested in the plaintiff, subject to the fraud counter-claim.
Whether the 1st defendant's counter-claim alleging fraud and nullity of the auction was proved
The counter-claim failed: fraud was not strictly proved, the chargee was not joined, and the ELC lacked the appropriate forum for grievances arising from the charge and statutory power of sale
Allegations of fraud require strict proof. The validity of the auction could not be resolved without joining Credit Agricole, the chargee, whose ceased operations in Kenya did not excuse non-joinder. Further, the grievances about statutory notices and compliance with the Auctioneers Act flowed directly from the charge, making the High Court the proper forum. Prior unsuccessful litigation in the High Court did not confer jurisdiction on the ELC as a next stage.
Whether the plaintiff was entitled to mesne profits
Mesne profits were refused for want of proof; only costs were awarded
The plaintiff conceded prayers (a), (b) and (c) were spent after gaining possession under an eviction order of 23.07.2018. On mesne profits, the valuation report from Phina Valuers merely addressed the property's 'current condition' and did not assess rental income, and the plaintiff suggested no figure in submissions. The court declined to award an arbitrary amount, holding the plaintiff failed its duty to substantiate the claim.
Legal principles established
#- Allegations of fraud in civil proceedings must be particularly pleaded and strictly proved to a standard higher than a balance of probabilities but below the criminal standard, and all necessary parties must be joined
- The validity of an exercise of a chargee's statutory power of sale cannot be conclusively determined in the absence of the chargee, who is entitled to a hearing on the issue
- Disputes flowing directly from a charge and the exercise of a statutory power of sale fall within the jurisdiction of the High Court, not the ELC
- Costs follow the event under Section 27 of the Civil Procedure Act unless the court, for good reason, directs otherwise
Court orders
#- 1.Judgment entered for the plaintiff against the defendant for costs of the suit only, since prayers (a), (b) and (c) of the plaint are spent and prayer (d) was not proved
- 2.The 1st defendant's counter-claim is dismissed in its entirety with costs to the plaintiff
- 3.The 2nd defendant by counter-claim (Attorney General) shall not be awarded costs since he did not file a defence to the action
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over disputes relating to land (not expressly cited in the judgment; court framed issues under Order 15 Rule 2 of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Prime Bank Limited v DJ Lowe & Company Limited & another (Environment and Land Case 142 of 2018) [2025] KEELC 7222 (KLR)", Case Analysis (2025). Not stated in the judgment (plaint dated 14.06.2018, filed at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7222/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.