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Case Brief · caselaw.co.ke
High CourtPartially Allowed

Plaintiff v Kariuki & Another (Ejectment from Charged Land)

High Court of Kenya
19 July 1989
1,175 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that a registered buyer of land sold at a bank auction keeps the title, and former owners' complaints belong with the bank, not the buyer.

What this practically means

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Executive summary

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The plaintiff sued by originating summons for possession of premises he purchased after they were sold at a public auction held on the instructions of Kenya Commercial Bank under a charge. He saw the auction advertised in the Daily Nation, bought the premises from Mr Simon Nyotu, a land and estate agent who had bought at the auction but not yet registered the transfer, for Kshs 125,000, obtained Land Control Board consent (obtained by Nyotu under the sale agreement) and was duly registered as proprietor. The defendants, widow and family members of the deceased registered owner, refused to vacate despite an advocate's notice. The only defence witness, DW1 (eldest son), alleged no notice of sale was served, the family was unaware of the auction, and the bank recovered far less than the debt. The court held the defence evidence irrelevant: complaints about service of notice of sale and the auction price were matters for the bank alone, with which the plaintiff was not connected. DW1 was discredited - a 'wild and irresponsible' deposition that the chargees sold to the plaintiff, and an admission in cross-examination that he did not live on the premises. The court inferred that Hamilton Harrison & Mathews, a long-standing firm acting for the bank, complied with service requirements. Judgment was entered for the plaintiff in terms of orders 1, 2 and 4 of the originating summons, with costs taxed as in a plaint.

Key legal issues

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01

Title of purchaser at bank auction versus occupation by chargor's family

Holding

The plaintiff's registered title prevailed; defendants had no legal right to remain in occupation

Reasoning

The plaintiff bought from the estate agent who purchased at the auction, obtained Land Control Board consent and was registered as proprietor. The defendants' grievances about the auction concerned the bank, not the plaintiff, and their evidence was irrelevant and disbelieved.

p. 3
02

Credibility of the defence evidence

Holding

DW1's evidence was rejected as untruthful and irrelevant

Reasoning

DW1 deponed falsely that the chargees sold the land to the plaintiff, and admitted in cross-examination that he did not live on the premises despite deponing otherwise. Key witnesses (the defendants and the brother who benefited from the loan) were not called, particularly on service of notice of sale.

p. 3
03

Inference of due service/compliance by the chargee's advocates

Holding

The court inferred Hamilton Harrison & Mathews, acting for the bank, complied with notice requirements

Reasoning

The auction advertisement was prominent in the Daily Nation and stated it was conducted on instructions of Hamilton Harrison & Mathews, a long-standing firm of advocates. The court held it hardly likely such a firm failed to comply with service requirements, and that educated businessmen DW1 and his brother must have seen the advertisement.

p. 3

Legal principles established

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  • A registered purchaser from an estate agent who has obtained transfer and registration holds title good against former occupants of the charged land
  • Complaints about service of notice of sale or the auction price lie against the chargee/bank, not a bona fide purchaser at the auction

Court orders

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  1. 1.Judgment for the plaintiff in terms of orders No. 1, 2 and 4 prayed for in the originating summons
  2. 2.Costs to be taxed as in the case of a suit filed by way of a plaint
Jurisdiction invoked
Original civil jurisdiction of the High Court via originating summons (not expressly stated in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Plaintiff v Kariuki & Another (Ejectment from Charged Land)", Case Analysis (1989). . Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.