Kathurima v Otieno; African Banking Corporation Limited (Interested Party) (Enviromental and Land Originating Summons E010 of 2025) [2026] KEELC 215 (KLR)

The court reviewed the certificate of sale, memorandum of sale and title deed and found the applicant purchased the property at a public auction and is the registered owner. Her good faith and integrity were never questioned. Under Section 99 of the Land Act, a good-faith purchaser from a chargee is protected and need not inquire into defaults or the regularity of the sale. Any grievance of the chargor lies against the chargee in damages, not against the property. The facts sworn to by the applicant were uncontested, so the originating summons was properly before the court and merited.

The respondent asserted that the validity of the auction sale was under challenge in Machakos HCCOMM E007 of 2022. Because these assertions formed the basis of his defence, the court expected him to produce an official search contradicting the applicant's registration and the pleadings or rulings demonstrating that the same matter was directly and substantially in issue between the same parties under Section 6 of the Civil Procedure Rules. He did not, and the CTS extract was insufficient to establish sub judice. The contested factual issues pertained solely to the respondent and the interested party, not the applicant.

Relying on Mbuthia v Jimba Credit Finance Corporation, the equity of redemption is extinguished the moment a valid contract is concluded in exercise of the statutory power of sale. The court adopted the summary in Kamulu Academy and followed Kamuri v Awino, where an originating summons for possession was allowed on similar facts with the respondent's claim reserved as one for damages against the bank. Since there was no evidence of constructive notice of fraud or irregularity by the applicant, the respondent cannot recover the property from her; any prejudice is compensable in damages against the interested party.