Rose Ngesa Aloo (Suing as a personal representative of the estate of Sospeter Ngesa Odalo - Deceased) v National Bank of Kenya Ltd & 2 others
The bottom line
#A Kenyan court ruled a bank cannot auction a dead borrower's land without first going through succession procedures, though an already-completed sale to an innocent buyer stands.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the lower court erred in its finding that the 1st Respondent exercised its statutory power of sale regularly and lawfully
Key legal issues
#Whether the 1st Respondent lawfully exercised its statutory power of sale over the suit properties after the chargor's death
The exercise was irregular and unlawful because the statutory notice, redemption notice and notification of sale were all issued and purportedly served after the deceased's death, when no legal representative of the estate had been appointed
The deceased died on 12th August 2020. The statutory notice was dated 8th December 2020 and the redemption notice and notification of sale were served on 28th April 2021, all after death and before any grant of representation. Service on a deceased person is not service in law, so the chargee's statutory power of sale was not regularly exercised.
Whether the lower court erred in finding that the 1st Respondent was unaware of the deceased's death
The lower court erred; the Appellant notified the 1st Respondent of the death by letter on 18th June 2021 and through her advocates on 29th June 2021, before the auction date
The Appellant wrote personally and through advocates well before the 9th July 2021 auction, acknowledging the notices and informing the bank of the death. There was no evidence the bank responded. The lower court's finding of unawareness was an about-turn from its own earlier reasoning, was unpleaded and was unsupported by the evidence.
Whether the sale of Plot No. 838 to the 3rd Respondent could be nullified
No; the 3rd Respondent was an innocent purchaser for value protected under section 99 of the Land Act 2012, and the Appellant's remedy is damages, which she never sought
Section 99 of the Land Act immunises a purchaser from a chargee's statutory power of sale from liability for irregularities, even with actual notice, absent fraud. The Appellant withdrew the appeal against the 3rd Respondent and never sought damages against the 1st Respondent, so the sale stands and no damages can be granted on appeal.
Legal principles established
#- Statutory notices served on a deceased chargor after death, when no legal representative had been appointed, render the exercise of the statutory power of sale irregular and unlawful
- A chargee aware of a debtor's death must follow the Law of Succession Act procedure, including applying for a grant of letters of administration, before realising its security
- A purchaser of charged land from a chargee exercising its statutory power of sale is protected by section 99 of the Land Act, and the remedy for an irregular sale lies in damages, not reversal of the sale
Court orders
#- 1.The judgment of the lower court delivered on 25th June 2024 dismissing the Appellant's suit against the 1st and 2nd Respondents is set aside and substituted with orders (a)-(c)
- 2.An order of injunction restraining the 1st and 2nd Respondents from selling, transferring or disposing of Title No. Kisumu/Dago/729 in exercise of the statutory power of sale without following due process for recovery of debts from estates of deceased persons
- 3.A declaration that the Appellant is entitled to redeem Title No. Kisumu/Dago/729 upon payment of the debt lawfully due to the 1st Respondent from the estate of Sospeter Ngesa Odalo
- 4.The Appellant shall have the costs of the lower court suit to be paid by the 1st Respondent
- 5.The Appellant shall have the costs of the appeal to be paid by the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kisumu
- Kisumu CMCELC No. E130 of 2021
- Jurisdiction invoked
- First appeal to the Environment and Land Court under the ELC's appellate jurisdiction over subordinate courts' land disputes
Relief refused
#Damages for the irregular sale of Plot No. 838 to the 3rd Respondent
Damages were never pleaded or sought before the lower court, so the appellate court could not grant them
Nullification of the sale and transfer of Plot No. 838 to the 3rd Respondent
The appeal against the 3rd Respondent was withdrawn and a bona fide purchaser is protected under section 99 of the Land Act
Costs
The Appellant shall have the costs of the lower court suit and the costs of the appeal, both to be paid by the 1st Respondent.
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.
It is my finding that to the extent that the 1st Respondent did not serve the estate of the deceased with the statutory notice, redemption notice and the notification of sale, the public auction of the suit properties conducted by the 1st and 2nd Respondent on 9th July 2021 was irregular and unlawful.
The deceased was therefore not served with the notices as required by law, rendering the purported exercise of the 1st Respondent's statutory power of sale irregular and unlawful.
(a)An order of injunction is issued restraining the 1st and 2nd Respondents, by themselves or through their agents or any other person acting through them, from selling, transferring or disposing of all that parcel of land known as Title No. Kisumu/Dago/729 in exercise of the 1st Respondent's statutory power of sale, without following the due process provided for the recovery of debts from estates of deceased persons.
A declaration that the Appellant is entitled to redeem all that parcel of land known as Title No. Kisumu/Dago/729 upon payment of the debt lawfully due to the 1st Respondent from the estate of Sospeter Ngesa Odalo.
In the final analysis and for the foregoing reasons, the Appellant's appeal partially succeeds.
Issues in the judgment
#Memorandum of appeal dated the same day the lower court judgment was delivered
Delivery date discrepancy: written and signed at Mombasa but delivered and countersigned at Kisumu on 28th September 2026
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Ngesa Aloo (Suing as a personal representative of the estate of Sospeter Ngesa Odalo - Deceased) v National Bank of Kenya Ltd & 2 others", Case Analysis (2026). ELC Appeal No. E040 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5855/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.