Ketul Surendra Tanna & 1 other v I & M Bank Limited & 2 others

ought to be sold in the exercise of the 1st Defendant's statutory power of sale under the Land Act, No. 6 of 2012, those rulings having been delivered on 21st July 2023, 13th March 2024, and 18th October 2024 respectively. Consequent upon those rulings, this Honourable Court further directed the Plaintiffs to grant access to prospective purchasers to facilitate that sale. 3. The suit property was duly sold on 24th April 2024 pursuant to the said statutory power of sale, and title thereto was subsequently transferred into the name of the 1st Defendant on 21st November 2024, from which date the 1st Defendant has been the registered proprietor of the property. Notwithstanding the foregoing, and in spite of an eviction notice served upon the Plaintiffs on 25th January 2025 in accordance with Section 152E of the Land Act, the Plaintiffs have refused, and continue to refuse, to vacate the suit property. That the Officer Commanding Kileleshwa Police Station declined to render any assistance towards the eviction, indicating that they required a formal eviction order from this Honourable Court before they can act. 4. The Application is opposed by way of Grounds of Opposition dated 24th July 2025, which address issues of law only and not the underlying facts. The Plaintiffs/Respondents in their written submissions confirm that the gravamen of their opposition is not the merits of the eviction per se, but what they characterize as a fatal defect of the application namely, that it is not anchored on any filed Defence and/or Counterclaim as required by law. They further argue that the application is fatally defective for seeking to circumvent and contravene the mandatory requirements of Sections 152E and 152G of the Land Act, No. 6 of 2012. 5. Finally, it is their case that since parties are bound by their pleadings, no party can procure any order in a suit that has not been pleaded in the substantive pleadings and finally that the cited statutory provisions do not confer upon this Honourable Court the jurisdiction to grant the prayers sought in the manner sought. 6. Having considered the application, the supporting affidavit, the Grounds of Opposition, and the rival written submissions, the main issue is whether the application is fatally defective for want of a filed Defence or Counterclaim. Analysis and Determination 7. The importance of pleadings to the integrity of litigation is beyond controversy. The Supreme Court in the case of Raila Amolo Odinga & Another V IEBC & 2 Others, (2017) eKLR found and held as follows on the importance of pleadings: “ In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings. …” 8. It is indeed true that pleadings form the backbone of litigation, yet, in this case that ought to be understood and applied within the proper context. The Plaintiffs’ objection is purely technical. The Court has already, on three separate occasions, sanctioned the exercise of the 1st Defendant’s statutory power of sale. The property has since been sold, transferred, and registered in the name of the 1st Defendant. The Plaintiffs do not contest these facts. Their opposition is confined to the procedural https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9069/eng@2026-06-26 2

page 2 of 3

argument that the application is not anchored on a Defence or Counterclaim, which issue has not been raised previously. 9. In the present context, to elevate this procedural technicality above the demands of substantive justice would offend Article 159(2)(d) of the Constitution, which enjoins courts to administer justice without undue regard to technicalities. The Plaintiffs continued occupation of the property, despite its lawful sale and transfer, is plainly unlawful. Moreover, Section 90(3)(d) of the Land Act expressly entitles a chargee to apply for possession of charged land. In addition, Sections 152E, 152F, and 152G of the Land Act set out the procedure for eviction, which is by application to Court. Significantly, the Plaintiffs have not alleged that the 1st Defendant has not complied with these statutory provisions. Disposition 10. Accordingly, and for these reasons, the application dated 3rd July 2025 is allowed. The costs of the application shall be borne by the Plaintiffs/Respondents. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2026. F. MUGAMBI JUDGE Delivered in presence of: Anyoka for plaintiffs/respondents Wawire for defendant/applicant Court Assistants: Lillian & Gloria https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9069/eng@2026-06-26 3

page 3 of 3