https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2975

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERICHO** **ELC CASE NO. 189 OF 2015** **AVTAR SINGH BACHU…………………….……..………..….PLAINTIFF** **VERSUS** **JOSEPH CHERUIYOT…………………..………….…..1ST DEFENDANT** **RICHARD CHERUIYOT………………..……………….2ND DEFENDANT** **DAVID CHERUIYOT……………………………………..3RD DEFENDANT** **ESTHER MUTAI…………………………………………..4TH DEFENDANT** **JANET CHEBET……………………………….…………5TH DEFENDANT** **FANCY CHEPKOECH MUTAI…………………….……6TH DEFENDANT** **ELIZABETH CHASANG TUM………………………….7TH DEFENDANT** **(IN THE MAIN SUIT)** **JOSEPH CHERUIYOT (Suing as the Administrator of the estate of HENRY TAITA TUM)…………………………..…………….PLAINTIFF** **VERSUS** **AVTAR SINGH BACHU………………………………….1ST DEFENDANT** **JAGJEET VIRDEE……………………………………….2ND DEFENDANT** **KCB (K) BANK LIMITED……………..………………..3RD DEFENDANT** **(IN THE COUNTERCLAIM)** **JUDGEMENT.** **INTRODUCTION.** 1. The Plaintiff commenced the present proceedings vide the Plaint dated 27th April, 2009 which plaint was amended on 18th February, 2020 and Further Amended on 7th December, 2021. 2. The Plaintiff in his Further Amended Plaint avers that he purchased land parcel No. Kericho/Roret/646 at a public auction on 9th February, 1997 and adds that Kenya Commercial Bank was selling the said parcel of land as a chargee exercising its statutory power of sale. 3. The Plaintiff also avers that he purchased the said parcel of land for Kshs. 835,000/=. 4. The Plaintiff further avers that the Defendants father, one **Henry Taita Tum** (deceased) had charged the said parcel of land to Kenya Commercial Bank. 5. It is the Plaintiff’s averment that despite the said parcel of land being registered in his name, and due notice being given to the Defendants, the Defendants have continued to occupy the suit parcel of land. 6. It is also the Plaintiff’s averment that he has on several occasions demanded vacant possession of the suit parcel but the Defendants have refused and/or failed to vacate the land. 7. The Plaintiff prays for judgement against the Defendants for; 1. ***An eviction order against the Defendants themselves and/or any other persons occupying land parcel number Kericho/Roret/646 under the authority of the Defendants, payment of mesne profits and a vesting order thereof to the Plaintiffs.*** 2. ***A permanent injunction restraining the Defendants and/or any other person occupying land parcel number Kericho/Roret/646 under the authority of the Defendants from trespassing into, entering and/or in any other way interfering with the Plaintiffs’ occupation, use, possession, and/or quiet enjoyment of the suit land.*** 3. ***Costs of this suit.*** 4. ***Interest on (c) above.*** 5. ***Any other relief deemed apt by this Honourable Court.*** 8. The Defendants filed their Statement of Defence dated 20th May, 2009 which was amended on 25th May, 2018 and further amended on 22nd May 2019 and further amended (sic) on 10th December, 2020. 9. The Defendants in their Further Amended Defence (sic) state that they were not served with a notification of sale within the statutory period of 45 days as required by law. 10. They also state that no public auction took place at Uhuru Gardens with respect to the suit parcel. 11. The Defendants further state that the Auctioneer who was involved in the sale of the suit property did not advertise the sale in a newspaper of wide circulation within fourteen days after the expiry of the 45 days’ notice. 12. In their Counterclaim, they state that their father one **Henry Taita Tum** (deceased) was the registered owner of land parcel No. Kericho/Roret/646. 13. They state that the suit parcel is ancestral land which they inherited from their father and where they have established their homes. 14. They further state that their deceased father guaranteed one **Reuben Chepkwony** by offering the suit parcel as security for a loan of Kshs. 250,000/=. 15. The Defendants state that the 3rd Defendant in the Counterclaim failed to give their deceased father a notice requiring him to pay the outstanding amount after the default in the repayment of the loan as required under **Section 74(1)** of the Registered Land Act (now repealed). 16. The Defendants also state that the 3rd Defendant in the Counterclaim improperly exercised its statutory power of sale as it failed to adhere to the statutory provisions. 17. The Defendants further state that the alleged sale of the suit parcel at the public auction on 9th January, 1997 is null and void and the 3rd Defendant in the Counterclaim could not pass a good title to the Plaintiff. 18. The Defendants state that their deceased father was not informed in writing that the borrower had defaulted and neither was he served with the three months’ notice as required under **Section 74(1)** and **(2)** of the **Registered Land Act** (Repealed). 19. The Defendants also state that without the service of the said notices, there could be no valid statutory power of sale under the **Registered Land Act** (Repealed). 20. The Defendants further state that the registration of the Plaintiff as the proprietor of the suit parcel is defective and he is now holding the said parcel of land in trust for them. 21. The Defendants state that the said trust should be terminated and the Plaintiff ordered to sign the necessary documents to transfer ownership of the suit land to the estate of the deceased. In default, the Deputy Registrar of this Court be ordered to do so on his behalf. 22. The Defendants seek the following prayers; ***(b) A A (sic) declaration that the sale of parcel No. LR No. Kericho/Roret/646 by a public auction conducted on 9th January, 1997 and subsequent transfer of it to the Plaintiffs (sic) is null and void.*** ***(c) A declaration that the Plaintiffs (sic) are holding titles to the suit land in trust for the Defendant (sic).*** ***d) An order terminating the said trust.*** ***(e)An order directing the Plaintiff to sign necessary documents restoring ownership of the suit property in the names Henry Taita Tum (sic) and in default thereof the Deputy Registrar of this Honourable Court to do so on their behalf.*** ***(f) A permanent injunction do issue restraining the Plaintiff’s, their (sic) servants, workmen, agents or any persons acting under their (sic) instructions from entering and/or interfering with LR No. Kericho/Roret/646 in any manner prejudicial to the Defendant (sic).*** 1. The 3rd Defendant in the Counterclaim filed its Statement of defence dated 20th November, 2021. 2. The 3rd Defendant in the Counterclaim denies the averments in the Defendants Further Amended Defence and states that the suit parcel was used as security to obtain a loan from it. 3. The 3rd Defendant in the Counterclaim also states that it followed the proper procedure in exercising its statutory power of sale. 4. The 3rd Defendant in the Counterclaim further states that the Defendants were served with the 45-day Notification of Sale Notice as required by law before the charged property was sold at a public auction and adds that the public auction was conducted after the sale was published in all the local daily newspapers. 5. The 3rd Defendant in the counterclaim states that the requisite notices under **Sections 74(1) & (2)** of the Registered Land Act (repealed) were issued to both the chargor and borrower. 6. It also states that despite the issuance of the said notices, the chargor failed to redeem the suit parcel. 7. The 3rd Defendant in the Counterclaim further states that the public auction was conducted in Kericho Town where the suit parcel was sold to the Plaintiff who was the highest bidder. 8. The 3rd Defendant in the Counterclaim states that the said auction complied with **Sections** (sic) **11(a) & 15(d)** of the **Auctioneers Rules** as the sale by auction was announced in two local dailies. 9. The 3rd Defendant in the Counterclaim therefore seeks that the suit against it be dismissed. **THE PLAINTIFF’S EVIDENCE.** 1. **Avtar Singh Bachu** testified as **PW1.** It was his evidence that he filed the present suit together with **Jagjeet Singh Vindee** who was now deceased. 2. It was also his evidence that he could not remember when **Jagjeet Singh Vindee** died. 3. It was further his evidence that he filed his witness statement and documents in Court and that the subject matter of the suit is Kericho/Roret/646. 4. He testified that he bought the suit parcel for Kshs 835,000/= from Kenya Commercial Bank in January, 1997 and that the sale was at a public auction. 1. He also testified that on 1st February, 2009, the land was registered in both his and his brother’s names. He produced the title deed as **Exhibit P1**. 2. He further testified that at the time of sale of the suit parcel, the land was registered in the name of **Henry Taita Tum** who is now deceased. 3. It was his evidence that they sued the Defendants herein who are the legal representatives of his estate. 4. It was also his evidence that he prays that the Court to issue orders of eviction against the Defendants. 5. It was further his evidence that after they purchased the suit parcel, they verbally asked the Defendants to vacate but they refused to do so and that after their refusal that they brought the matter to Court. 6. He testified that he seeks that the Defendants be ordered to pay for use of the suit land. 1. He further testified that they had purchased the suit parcel with the intention of planting trees for use by Kabianga Tea Factory and added that he does not have any assessed report showing that the trees would have earned kshs. 11,000,000/=. 2. It was also his evidence that had they planted eucalyptus trees, they would have harvested the said trees three times for Kshs. 11,000,000/= in a span of twenty-four years. 3. It was further his evidence that apart from eviction, they are also seeking for mesne profits, an injunction and costs. 4. He testified that after they purchased the suit parcel at the public auction, they followed the due process. He stated that he had in Court the title deed that had been issued to **Taita Tum** (deceased). It was marked and produced as **Exhibit P2**. 5. He also testified that he had in his possession a Memorandum of Sale of the land. It was marked and produced as **Exhibit P3**. 6. He produced a copy of a Notification of sale issued by the Kenya Commercial Bank to **Taita Tum** (deceased) as **Exhibit P4**. 7. He further testified that the Kenya Commercial Bank made an application to the Land Control Board which he produced as **Exhibit P5**. 8. It was his evidence that the Land Control Board issued a consent dated 21st January, 2009. It was marked and produced as **Exhibit P6.** 9. It was also his evidence that **Taita Tum** (deceased) had filed another suit against them i.e. Kericho HCC No. 49 of 2009 where he denied that the land belonged to him. 10. It was further his evidence that **Taita Tum** (deceased) did not want to give possession of the suit land and that the said suit was dismissed on 24th February, 2010. He testified that he had attached the decision of the Court to his list of documents. 1. Upon cross examination, **PW1** reiterated that he purchased the suit parcel at a public auction. 2. He admitted that he could not remember the name of the auctioneers. 3. He stated that the auctioneers were going around town with a bell announcing the auction and that is how they came to learn of it. 4. He confirmed that there was no notice in the newspaper and the auction took place at Uhuru Gardens within Kericho Town. 5. He also confirmed that there were many bidders and that he and **Jagjeet** purchased the suit parcel. 6. He was then referred to the Notification of Sale that had been produced as **Exhibit P4**. He admitted that it was dated 5th December, 1996 and confirmed that the sale was conducted on 9th January, 1997. 7. He admitted the suit parcel was sold thirty-six days after the date indicated on the Notification of Sale. 8. He also admitted that he was not aware of the forty-five days statutory period before the land could be sold after the issuance of the Notification of Sale. 9. He confirmed that the notification of the auction was on paper and admitted that they did not go and view the land after learning that it was up for auction. 10. He also confirmed that they told the Defendants verbally to vacate and later they asked them to vacate through a lawyer. 11. He admitted that he could not remember the date of the notice. 12. Upon further cross examination, he reiterated that they purchased the suit parcel at a public auction. 13. He also reiterated that the auctioneer was going around town announcing the auction and he confirmed that there was a publication of the auction but he did not have it. 14. He admitted that on the day of the auction, the Defendants were not present and reiterated that they were the highest bidders and that is why the land was sold to them. 15. Upon re-examination, he stated that the Defendants were given a Notice to Vacate by an advocate whose name he could not remember. 16. He reiterated that he also gave the Defendants a verbal notice and that he followed the due process until he was issued with a title deed. 17. **Jaswinder Singh Virdee** testified as **PW2**. It was his evidence that he runs a tea processing factory at Kabianga and also does engineering works in Kericho Town. 18. It was also his evidence that he resides at Duka Moja on the Kericho – Nakuru highway. 19. It was further his evidence that he was in Court with regard to a parcel of land that he had jointly purchased with **Jagjeet Singh Virdee** (deceased). 20. He testified that **Jagjeet Singh Virdee** (deceased) was his brother and that he passed away after he was shot by robbers. 21. He also testified that he did not know the parcel number of the suit parcel but he stated it in his witness statement dated 16th February, 2022. 22. He further testified that the suit parcel is Kericho/Roret/646 which land they purchased at a public auction in Kericho Town. 23. It was his evidence that Kenya Commercial Bank through its lawyers Hamilton Harris & Mathew Co. Advocates were selling the land. 24. It was also his evidence that they paid a purchase price of kshs. 835,000/= to the bank through their lawyer and they were issued with the original title. 25. It was further his evidence that they obtained consent, paid stamp duty before the land was transferred to their names. 26. He testified that the Defendants filed a suit in which they sought orders of adverse possession which suit was dismissed. 27. He also testified that he was present in Court when the High Court dismissed the suit. 28. He further testified that they have been trying to get access to the land in order to use it for the factory but have not been able to access it. 29. It was his evidence that they lost the proceeds they would have received from use of the suit parcel and added that they seek damages because the Defendants refused to give them access to the land. 30. It was also his evidence that they initially intended to build a factory on the suit parcel but when the process of taking possession took long, they purchased another parcel of land in Kabianga where Kabianga Tea Factory now stands. 31. It was further his evidence that they had intended to plant Eucalyptus trees on the land to use as firewood in the factory but they now have to buy firewood every day. 32. He testified that a period of twenty years has lapsed since the suit parcel was purchased and explained that the land was bought around January/February 1997. 33. He also testified that they still have plans to plant eucalyptus trees and had they planted the said trees when they purchased the land, then they would have harvested three times. 34. He further testified that they seek that the Defendants vacate the suit parcel so that they can use it for the purposes that they bought it for. 35. He ended his testimony by seeking orders of eviction and damages. 36. Upon cross examination, he confirmed that he was present when the land was being sold by public auction sometime in January, 1997. 37. He also confirmed that the notification of the auction was in the media but he could not remember which one. 38. He admitted that he went to the auction with his brother but left before the auction was over. 39. When referred to the Notification of Sale produced as **Exhibit P4**. He admitted that he was seeing the said Notification of Sale for the first time in Court. 40. He also admitted that the said Notification of Sale was dated 5th December, 1996 while the sale was conducted on 9th January, 1997. 41. He confirmed that the period between 5th December, 1996 and 9th January, 1997 was thirty-six days. 42. He also confirmed that the auction took place in Kericho Town near the old Court buildings but admitted that he could not remember where. 43. He also admitted that he did not visit the land and was also not aware whether his brother visited the land. 44. He also stated that he was not aware if his brother gave notice to the Defendants for them to vacate the land and further stated that he did not know the names of the Auctioneers. 45. Upon further cross examination, he confirmed that he remained where the auction was taking place for a few minutes after his brother informed him of the auction. 46. He also stated that he did not know if there were other bidders. 47. He further confirmed that the land was sold to his brother and they were together when his brother made the final payment. 48. Upon re-examination, **PW2** reiterated that he did not know if his brother or **PW1** visited the suit parcel. He stated that his brother had a newspaper containing the advertisement and added that the land was fully paid for and a title deed issued. 49. The Plaintiff’s case was then closed. **THE DEFENDANTS CASE.** 1. **Joseph Cheruiyot** testified as **DW1**. It was his evidence that in the year 2013, they filed a suit because their father’s land had been sold. 2. It was also his evidence that his father gave him a power of attorney and added that the power of attorney is dated 26th June, 2018. 3. He testified that his father had told him that he gave one **Chepkwony,** who was his friend, the title deed of the suit land to use as security for a loan from the Kenya Commercial Bank. 4. He also testified that **Chepkwony** took the loan, delayed in repaying it and did not inform his late father. 5. He further testified that they were not given any notice by Kenya Commercial Bank and when they followed up with the bank, they were informed that the land had been sold. 6. It was his evidence that they went to Kenya Commercial Bank in Eldoret where they found a notice to the effect that the land had been sold. 7. It was also his evidence that that when they learnt about the sale, they filed the present suit. 8. **DW1** then prayed that the Court adopts his witness statement as part of his evidence in Chief which prayer the Court acceded to. 9. It was further his evidence that the suit parcel is Kericho/Roret/646 and even after it was sold, they continued to live on it. 10. He testified that they now seek that the land be returned to them because they did not receive any notice from the bank. 11. He also testified that the land is now registered in the names of the people who purchased it. it was his evidence that they don’t know the plaintiffs and added that the Plaintiffs have never been to the suit land. 12. **DW1** filed two witness statements. One is dated 15th September, 2017 while the other one is dated 8th December, 2020. In the witness statement dated 15th September, 2017, he reiterates the averments in the Statement of Defence. 13. In his witness statement dated 8th December, 2020, **DW1** reiterates the averments in the Defendants’ Further Amended Defence and states that his father informed him that the suit parcel was sold on 9th January, 1997 by Kenya Commercial Bank in exercise of its power of sale. 14. He also states that he is the administrator of the estate of his deceased father. 15. Upon cross examination he reiterated that his name is **Joseph Cheruiyot** and that he is the late **Taita Tum’s** son. 16. He confirmed that **Taita Tum** (deceased) was the registered owner of the suit parcel and reiterated that his deceased father’s friend one **Reuben Chepkwony,** used his title as security to take a loan. 17. He also confirmed that in his witness statement dated 15th September, 2017, he mentioned **Reuben Chepkwony**. 18. When he was given his witness statement to read, he stated that his eyes could not see well. 19. He denied being aware of any suit that was filed by his deceased father that raised the issue of adverse possession. 20. He admitted that the land was sold because the loan was not repaid and reiterated that they were not notified. 21. He also admitted that he did not know who sold the land but confirmed that the land was sold because of default in repayment of the loan. 22. He reiterated that they still live on the suit parcel and added that they have lived on it since they were born. 23. He stated that even if he was given three months to vacate the suit land, he would not vacate because it was difficult for him to do so. 24. Upon further cross examination, he reiterated that the land was given as security for a loan and was sold because **Reuben** had not repaid the loan. 25. He also reiterated that they were not notified of the default but they were informed that the land had been sold. 1. He confirmed that his father died in the year 2019 and that he was given the power of attorney in the year 2015. 2. He also confirmed that the loan was taken in the year 1988 and stated that his father did not inform them of any notice served upon him. 3. He further stated that he did not read the newspaper and reiterated that they got the report after the land had been sold. 4. He confirmed that the persons who purchased the suit land are now the registered proprietors. 5. Upon re-examination, he stated that his father did not receive any notice for sale of land. **THE 3RD DEFENDANT IN THE COUNTERCLAIM’S CASE.** 1. **Joseph Barng’etuny** testified as **DW1**. It was his evidence that he worked at the Kenya Commercial Bank Eldoret main Branch as a Credit Administration Manager. 2. It was also his evidence that he was employed by the Kenya Commercial Bank on 22nd February, 1999. He stated that he filed a witness statement dated 26th October, 2022 and prayed that the Court adopts the said statement as part of his evidence in chief, which prayer the Court acceded to. 3. It was also his evidence that he had a list of documents dated 9th March, 2022, which list had seven documents. 1. It was further his evidence that he had a valuation report prepared by Highland Valuers which was commissioned to determine the market value of land parcel No. Kericho/Roret/646 which was the charged property. 2. He testified that the suit parcel was valued at Kshs. 820,000/=. He produced a copy of the said report as **Exhibit D1 (cc).** 3. He also testified that there was a default in the repayment of the loan of Kshs. 250,000/= that was taken on 15th May, 1986. 4. He further testified that overtime, the loan attracted interest and that at the time of sale the arrears were at Kshs. 840,000/=. 5. It was his evidence that the bank instructed **Express Services Agency** and they issued a Notification of Sale which had been produced by the Plaintiff as **Exhibit P4**. 6. It was also his evidence that the 3rd Defendant in the Counterclaim sold the said parcel of land in exercise of its statutory power of sale under **Section 74** of the Registered Land Act (Cap 300). 7. It was further his evidence that the sale took place after **Express Services Agency** issued particulars of property and Conditions of Sale dated 9th January, 1997. 8. He testified that the highest bidders were **Avtar Singh Bachu** and **Jagjeet Virdee** who purchased the suit parcel at kshs. 835,000/=. 9. He also testified that the Plaintiffs in the Counterclaim did not make any effort to redeem the property. 10. He further testified that at the fall of the hammer, **Avtar** and **Jagjeet** paid the sum of Kshs. 208,750/= and the balance was to be paid within thirty days. 11. It was his evidence that a Memorandum of sale was signed. it was marked and produced as **Exhibit D2 (cc).** 12. He produced a copy of a Cheque dated 9th January, 1997 for Kshs. 208,950/= that was issued to **Express Services Agency** and as **Exhibit D3 (cc).** 13. It was also his evidence that the purchasers took possession of the suit property and were issued with the necessary documents. 14. It was further his evidence that he had in Court a letter dated 10th January, 1997 written by **Express Services Agency** and addressed to **Hamilton Harrison & Mathews** which stated that the purchaser was threatened by the owner of the land. He produced a copy of the said letter as **Exhibit D4 (cc).** 15. He testified that he had another letter dated 10th January, 1997 written to **Express Services Agency**. The said letter had a request that the cheque should not be banked because the purchasers went to the suit parcel and found hostile people. The letter also stated that they were under the impression that the land would never be available to them. The letter was copied to **Hamilton, Harrison & Mathews**. A copy of the said letter was produced as **Exhibit D5(cc).** 16. He also testified that he had another letter dated 16th January, 1997 written by **Hamilton Harrison & Mathews** who were their lawyers and which letter was addressed to **Express Services Agency**. The letter was copied to the Manager Kenya Commercial Bank Eldoret Branch. The letter requested for the cheque of Kshs. 208,750/= that had been issued to the Auctioneers and also shared the concerns of the buyer. 17. He further testified that the Auctioneers attempted to assure the buyer to complete the transaction. 18. It was his evidence that the contract for sale was not terminated and he produced a copy of the said letter as **Exhibit D6 (cc).** 19. It was also his evidence that the auction was concluded, the transfer effected and he reiterated that the balance was to be paid within thirty days. 20. It was further his evidence that the chargee transferred the suit parcel to the purchaser and the chargee would not have released the title if it had not received all the amounts as per the auction. 21. He testified that the land was transferred to **Avtar Singh Bachu** and **Jagjeet Singh Virdee.** 22. In his witness statement, he states that after default in the repayment of the loan, the 3rd Defendant in the Counterclaim instructed **Express Services Agency Kenya** to effect its statutory power of sale. 23. He also states that the sale was to be conducted pursuant to **Section 74** of the **Registered Land Act.** 24. He further states that **Express Services Agency Kenya** issued a Notification of Sale dated 5th December, 1996 which was also published in the daily newspapers of wide circulation. 25. He states that the Notification of Sale indicated that the suit parcel was to be sold at a public auction on Thursday, 9th January, 1997 at 11:30 am in Uhuru Gardens, Kericho. 26. He also states that on 9th January, 1997 the Chargee (sic) did not make any appearance and neither did he attempt to redeem the suit parcel and the auction proceeded wherein **Avtar Singh Bichu** was the highest bidder. 27. Upon cross examination by Counsel for the Plaintiffs in the Counterclaim, he confirmed that the bank was the Chargee. 28. He stated that to the best of his knowledge, the bank gave a notification in writing to the Chargor and or a member of his family of the intention to sell. 29. He admitted that he had no copy of the notification of sale issued to the 1st Defendant. 30. He reiterated that the loan was issued in the year 1986 and the process before sale must have been adhered to. 31. He admitted that he could not verify the issue whether the notification of sale was issued. 32. He also admitted that **Section 74** of the **Registered Land Act** (repealed) stated that the Notification of Sale was important. 1. When referred to paragraph 4 of his witness statement. He confirmed that in his witness statement, he stated that a Notification of Sale dated 5th December, 1996 was published in a daily newspaper of wide circulation. 2. He admitted that he did not produce the advertisement in evidence. 3. He stated that he did not agree that the suit parcel was sold without any notice to the Defendant (sic) or his family. 4. He also stated that the Plaintiff in the main suit must have seen the notice in the newspaper and reiterated that he did not have the said advertisement bearing the notification of sale. 5. He confirmed that their lawyer did not write to Mr. **Tum** (deceased) and admitted that he could not confirm if the said lawyers wrote any letter. 6. He admitted that he was aware that according to the law, if notice was not given then the sale was defective. 7. He confirmed that the persons in occupation of the suit land were hostile when the purchaser went to see the land. 8. He admitted that the said hostility was not reported and that he did not have any record of any report made to the police. 9. **DW1** was then referred to the Notification of Sale that had been produced as **Exhibit P4**. He confirmed that it was dated 5th December, 1996 and the date of sale was stated to be 9th January, 1997. 10. He admitted that the said notice was for thirty-six days and further admitted that the statutory notice was supposed to be for forty-five days. 11. Upon further cross examination by Counsel for the Plaintiff in the main suit, he confirmed that the auction was conducted on 9th January, 1997. 12. He also confirmed that the Plaintiff was issued with a title deed on 6th February, 2009 which title deed had been produced as **Exhibit P1**. 13. He further confirmed that between 9th January, 1997 and when he was served with the Further Amended Defence, a period of twenty-three years had lapsed. 14. He admitted that he was joined as the 3rd Defendant in the Counterclaim in the Further Amended Defence. 15. He stated that in those twenty-three years, the Defendants never raised an issue with the Kenya Commercial Bank. 1. He also stated that they first became aware of this suit in the year 2020 when they were served with a Statement of Defence. This was five years after the suit was filed. 2. He confirmed that title documents were issued to the Plaintiff on 6th February, 2009 and during that time, there was no complaint made to the bank. 3. He also confirmed that **Tum** (deceased) defaulted and the bank exercised its statutory power of sale. 1. He further confirmed that he had no documents showing any attempts by **Tum** (deceased) to pay the debt owing. 2. Upon re-examination he stated that the hostility was meted upon the purchasers and the bank had no business making a report to the police. 3. He also stated that the loan was issued in May, 1986 and it was supposed to be repaid in 36 months. At the time of sale, ten years had lapsed since the loan was given. 4. He further stated that the issuance of the loan is not disputed and default in the repayment of the loan is also not disputed. 1. He stated that they never received any letter with a proposal to redeem the suit parcel. 2. The 3rd Defendant in the Counterclaim’s case was then closed. **ISSUES FOR DETERMINATION.** 1. The Plaintiff filed his submissions on 14th February, 2025, the 3rd Defendant in the Counterclaim filed its submissions on 18th March, 2025 while the Defendants filed their submissions on 1st April, 2025. 2. The Plaintiffs submit on the following issues; 1. ***Whether the Defendants (Plaintiffs in the Counterclaim) claim in the Counterclaim is res judicata.*** 2. ***Did the Plaintiff prove its (sic) case on a balance of probabilities?*** 3. ***Did the Defendants (Plaintiffs in the Counterclaim) prove their case against the 3rd Defendant in the Counterclaim i.e. KCB Kenya Limited?*** 4. ***Did the Defendants (Plaintiff (sic) in the Counterclaim) prove their case in the Counterclaim?*** 5. ***Who should pay the costs?*** 3. The Plaintiff submits that the Defendants filed Kericho HCC No. 49 of 2009 (OS) seeking orders of adverse possession over land parcel No. **Kericho/Roret/646.** 4. The Plaintiff also submits that the said suit was dismissed on 24th February, 2010. 5. The Plaintiff further submits that in filing the claim for adverse possession, the Defendants admitted that the suit parcel belongs to the Plaintiff after he purchased it an auction. 6. It is therefore the Plaintiff’s submissions that the Defendants claim in the Counterclaim is an abuse of the Court process as it is *res judicata*. 7. It is also the Plaintiff’s submissions that Counsel for the Defendants had a duty to his clients and the Court to disclose the existence of the former suit that involved the same parties as well as the same subject matter. 8. It is further the Plaintiff’s submissions that the Defendants have introduced the issue of trust which is meant to hoodwink everyone into believing that it is a new cause of action in order for them to continue occupying the suit parcel. 9. The Plaintiff submits that he purchased the suit parcel on 9th January, 1997 and thirty years later, he has not been able to benefit from it. 1. The Plaintiff also submits that the Defendants did not call any witnesses to corroborate their case and neither did they produce any documents in support of their case. 2. The Plaintiff further submits that the Defendants did not file any appeal against the judgement of the Court that was delivered in Kericho HCC No. 49 of 2009 (OS). 1. It is the Plaintiff’s submissions that the present suit was filed in the year 2009 as Kericho HCC No. 39 of 2009 and after the establishment of the Environment and Land Court, the matter was transferred to this Court. 2. It is also the Plaintiff’s submissions that **Joseph Cheruiyot** **(DW1)** in his evidence stated that they would not vacate from the suit parcel and there is therefore need for the Court to issue eviction orders. 1. The Plaintiff concludes his submissions by urging the Court to allow his claim in the Plaint and dismiss the Defendant’s Counterclaim. 2. The Defendants submit on the following issues; 1. ***Whether or not the doctrine of res judicata is available to the Plaintiffs. (sic)*** 2. ***Whether or not the Plaintiffs had acquired good title in respect of LR No. Kericho/Roret/646.*** 3. On the first issue, the Defendants submit that the Plaintiff amended his Defence to the Counterclaim to introduce the issue of *res judicata* after the fourteen-day period he was given lapsed and they therefore submit that the said document should be expunged from the Court record. 4. The Defendants rely on the judicial decisions of **Neeraj Jayatilaiya Kalaiya vs Cheruiyot & 5 Others (Environment & Land Case E394 of 2021) [2022] KEELC 2669 (KLR) (23RD June 2022)** and **Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & others [2014] eKLR** in support of their submissions. 5. The Defendants also submit that the Plaintiff referred to the judgement of the Court delivered in Kericho HCC No. 49 of 2009 and yet the said judgement was not produced by either the Plaintiff or his witness. 6. The Defendants further submit that paragraphs **7, 8, 9, 10, 11, 12** and **16** of the Plaintiff’s submissions are not based on any evidence and they urge the Court to disregard them. 7. It is the Defendants submissions that the Court should disregard paragraphs **10, 11, 20, 21, 22, 23, 25, 26, 28, 29** and **30** of the 3rd Defendant in the Counterclaim’s submissions as they are also not based on any evidence. 8. The Defendants rely on the judicial decisions of **Joseph Murangi & another vs Beatrice Kainda Kaibiria Civil Appeal No. 175 of 1996** and **Daniel Toroitich Arap Moi vs Mwangi Stephen Muriithi & another [2014] eKLR** in support of their submissions. 9. On the second issue, the Defendants submit that the 3rd Defendant in the Counterclaim contends that it complied with **Section 74(1)** and **(2)** of the Registered Land Act (repealed.) and issued the requisite statutory notices. The Defendants submit that the onus is on 3rd Defendant in the Counterclaim to prove that the said provisions of the law were complied with. 10. The Defendants also submit that it was their evidence that their deceased father was not served with any notices by the 3rd Defendant in the counterclaim. 11. The Defendants further submit that the 3rd Defendant in the Counterclaim could not produce a copy of any letter informing the chargor of the loan repayment (sic) and/or a copy of a notification of sale by public auction. 12. The Defendants set out the evidence of **Joseph Barngetuny** who was the 3rd Defendant in the Counterclaim’s witness and reiterate that the requisite notices were not served upon their deceased father. 13. The Defendants also submit that the 3rd Defendant in the Counterclaim admitted that the public auction was done thirty-six days after the Notification of Sale was issued instead of the statutory forty-five days. 14. The Defendants further submit that the said sale therefore lacked integrity. 15. The Defendants rely on **Sections 107, 108** and **109** of the Evidence Act, the judicial decisions of **Nyangilo Ochieng & another v Fanuel B. Ochieng & 2 Others [1996] eKLR**, **DNM v MaK & 4 Others [2014] eKLR** and urge the Court to allow their counterclaim as prayed. 16. The 3rd Defendant in the Counterclaim submits on the following issues; 1. ***Whether the statutory power of sale exercised by the 3rd Defendant in the Counterclaim was lawful.*** 2. ***Whether the public auction conducted on 9th January (sic) was lawful.*** 17. On the first issue, the 3rd Defendant in the Counterclaim submits that it is not disputed that the suit parcel was used as security for a loan facility of Kshs. 250,000/= vide the charge dated 15th May, 1986. 18. The 3rd Defendant in the Counterclaim also submits that it is not disputed that there was a default in the repayment of the loan which led to it exercising its statutory power of sale. 19. The 3rd Defendant in the Counterclaim further submits that it issued the Plaintiffs in the Counterclaim with a 90-day notice as required under **Section 74** of the **Registered Land Act** (repealed) before the auction took place on 9th January, 1997. 1. It is its submissions that the Plaintiffs in the Counterclaim were also issued with a written notice under **Section 74** of the **Registered Land Act** (repealed) and the 45-day notice under the Auctioneers Rules. 2. It is also the 3rd Defendant in the Counterclaim’s submissions that they caused a valuation of the suit parcel to be done in order to get the forced sale value. 3. The 3rd Defendant in the Counterclaim relies on the judicial decisions of **Palmy Company Limited v Consolidated bank of Kenya Limited Ml HCCC No. 527 of 2013 [2014] eKLR, Silas Misoi Yego T/A Siro Investments vs Transnational Bank Limited & another HC Comm No. E101 of 2020 [2020] eKLR** and submits that the Plaintiffs in the Counterclaim have not adduced any evidence to undermine the valuation done and it therefore urges the Court to find that the sale of the suit parcel did not breach the law. 4. The 3rd Defendant in the Counterclaim submits that despite issuance of the requisite notices, the Plaintiffs in the Counterclaim ignored and/or neglected the said notices and failed to service the loan. 5. The 3rd Defendant in the Counterclaim also submits that since the 1st Plaintiff in the Counterclaim defaulted in repaying the loan, it was entitled to exercise its statutory power of sale in accordance with the law. 6. The 3rd Defendant in the Counterclaim relies on the judicial decisions of **Nyando Enterprise Limited vs Barclays Bank Kenya Limited [2018] eKLR, Executive Curtains and Furnishings Limited vs Family Finance Building Society Limited [2007] eKLR** in support of its submissions. 1. The 3rd Defendant in the Counterclaim then sets out the contents of a ninety-day notice that is to be issued under **Section 74(1)** of the Registered Land Act (repealed) and submits that the title to the suit parcel was issued to the Plaintiff in the main suit on 6th February, 2009. 2. The 3rd Defendant in the Counterclaim also submits that the said title was issued twenty years after the sale was conducted and no complaint was raised over the issuance of the said title. 1. The 3rd Defendant in the Counterclaim relies on the judicial decision of **Moses Kibiego Yator vs Eco Bank Kenya Limited NKU E & L No. 426 of 2013 [2014] eKLR** and reiterates that it issued all the requisite notices. 2. The 3rd Defendant in the Counterclaim submits that the notification of sale provided a proper three month notice as required under **Section 74** of the **Registered Land Act** (repealed). 3. It is the 3rd Defendant in the Counterclaim’s submissions that since due procedure was followed in the exercising of its statutory power of sale, the 1st Defendant in the main suit’s equity of redemption of the property was extinguished. 4. On the second issue, the 3rd Defendant in the Counterclaim submits that it advertised the sale of the suit parcel by way of public auction in the dailies of wide circulation after the expiry of the 45-day notice as required under **Rules 11 (a)** and **15 (d)** of the **Auctioneers Rules.** 5. The 3rd Defendant in the Counterclaim also submits that the auction that took place on 9th January, 1997 was valid and the Plaintiff was the highest bidder. 6. The 3rd Defendant in the Counterclaim concludes its submissions by urging the Court to dismiss the Counterclaim with costs. 7. On 6th November, 2025, parties were given opportunity to file submissions on the question of jurisdiction. The Plaintiff filed submissions on 23rd January, 2026, the Defendants filed submissions on 11th February, 2026 while the 3rd Defendant in the Counterclaim filed submissions on 2nd February, 2026. 8. The Plaintiff submits that the Defendants have raised the following issues in their counterclaim; 1. ***Validity of the charge.*** 2. ***Validity of statutory notices.*** 3. ***Validity of the statutory power of sale.*** 4. ***Conduct of the chargee is exercising its statutory power of sale.*** 5. ***Remedies of setting aside the auction, nullifying the sale and reinstating the property to the Chargor’s estate.*** 9. The Plaintiff also submits that the said issues relate to contractual obligations, commercial transactions and recovery of money. 10. The Plaintiff further submits that the said issues do not touch on land administration, land use, environmental issues, boundaries and/or land ownership disputes as provided for under **Article 162 (2)(b)** of the Constitution of Kenya and **Section 13** of the Environment and **Land Court Act.** 11. It is the Plaintiff’s submissions that the issues raised by the Defendants in the Counterclaim ought to be canvassed before the Commercial Division of the High Court. 12. The Plaintiff relies on **Section 2** of the **Land Registration Act** and submits that the **Environment and Land Court Act** does not confer upon this Court jurisdiction over banking law, credit facilities, charges, statutory power of sale and commercial contracts. 13. The Plaintiff submits that the Defendants averments at paragraphs **5A** to **5G, 6A, 6B** and **7** together with the prayers sought in the Counterclaim offend the provisions of **Article 162 (2)(b)** of the Constitution and **Section 13** of the Environment and **Land Court Act.** 14. The Plaintiff relies on the judicial decisions of **Owners of the Motor Vessel “Lilian S” vs Caltex Oil (Kenya) Ltd [1989]eKLR** and **Co-operative bank of Kenya Ltd vs Patrick Kang’ethe Njuguna & 5 Others [2017] eKLR** in support of his submissions. 15. It is the Plaintiff’s submissions that contractual matters that relate to charges and a Bank’s right of redemption are purely commercial matters which do not fall under the jurisdiction of this Court. 16. The Plaintiff relies on the judicial decisions of **Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others [2017] KECA 231 (KLR), Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others [2024] KECA 410 (KLR)** in support of his submissions. 17. The Plaintiff relies on **Section 7** of the Civil Procedure Act and submits that the Court in Kericho HCC No. 49 of 2009 (OS) delivered a decision on the same subject matter and he therefore urges the Court to strike out the Counterclaim with costs. 18. The Defendants rely on **Article 162(2)(b)** of the Constitution of Kenya, **Section 13** of the Environment and Land Court Act and submit that this Court has jurisdiction to determine disputes over land and issue various remedies that include injunctions, damages and orders of specific performance. 19. The Defendants rely on the judicial decision of **Co-operative Bank of Kenya Ltd vs Patrick Kang’ethe Njuguna [2017] eKLR** and submit that the Court of Appeal held that in instances where a dispute is over a mortgage and/or charge and it involves accounting, then the proper forum will be the Commercial Division of the High Court. 20. It is the Defendants submissions that this decision does not mean that any dispute that relates to a charge automatically ousts the jurisdiction of the Environment and Land Court. 21. The Defendants rely on the judicial decision of **P.J Dave Flowers Limited vs Limuru Hills Limited & 2 Others** (citation not given) and submit that in the said decision, the Court held that where there are competing interests in land, the Court has jurisdiction to hear and determine the dispute. 22. The Defendants rely on the judicial decision of **Lydia Nyambura Mbugua vs Diamond Trust Bank Kenya Ltd & another** (citation not given) and submit that in the said suit, orders of cancellation and/or rectification of title arising from an impugned statutory sale process was heard and determined by the Environment and Land Court. 23. It is the Defendants submissions that the Environment and Land Court does not have jurisdiction to hear and determine disputes over mortgages that relate to loan accounts and commercial recovery mechanics. 24. It is also the Defendants submissions that the Environment and Land Court has jurisdiction to hear disputes that relate to title, occupation and possession of land even in instances where the dispute relates to mortgages. 25. It is further the Defendants submissions that the Plaintiff contends that he purchased the suit parcel of land at an auction in the year 1997 and he now seeks orders of eviction, mesne profits and a permanent injunction. 26. The Defendants submit that in their defence and counterclaim, they contend that the sale and transfer of the suit parcel of land to the Plaintiff’s name is null and void. 27. The Defendants also submit that they now seek orders that challenge the validity of the transfer of the suit parcel of land to the Plaintiff’s name and they seek that ownership be restored to their deceased father’s name. 28. The Defendants further submit that these issues relate to title and possession of land and this Court has jurisdiction to hear and determine them. 29. The Defendants rely on **Section 13(2), (a, (d), (e) & 7** of the Environment and **Land Court Act** in support of their submissions. 30. It is the Defendants submissions that their Counterclaim raises concerns over service of statutory notices and the exercise of statutory power of sale in order to impeach the registration of the Plaintiff as the owner of the suit parcel of land. 31. It is also the Defendants submissions that this does not convert the dispute into a banking facility cause as the Court is not being asked to determine indebtedness and/or tabulate sums owing. 32. The Defendants rely on the judicial decision of **Hamram Ahmed Salim vs Co-operative Bank of Kenya Ltd & 2 Others** (citation not given) and submit that the Environment and Land Court is the proper forum to determine disputes whose primary relief seeks nullification of title rather than recovery of a debt. 33. The Defendants rely on the judicial decisions of **Republic v Chief Land Registrar & another Ex-parte Yosabia Kerubo Manyura [2018] eKLR, Mwareri v Land Registrar (Naivasha) & 3 others [2023] KEELC 20162 (KLR), Republic vs District Land Registrar, Siaya; Okong’o** (citation not given) in support of their submissions. 34. The Defendants conclude their submissions by urging the Court to find that it has jurisdiction to hear and determine the suit and the Counterclaim. 35. The 3rd Defendant in the Counterclaim submits that in determining the question of jurisdiction, the Court has to look beyond the from in which the pleadings are drafted and interrogate the substance of the dispute in order to ascertain the dominant issue. 36. The 3rd Defendant in the Counterclaim also submits that the Defendants Counterclaim raises issues of the acquisition, validity and transmission of proprietary interests in land including claims of adverse possession, trust and alleged illegality of a public auction. 37. The 3rd Defendant in the Counterclaim further submits that the core issues raised relate to interests in land which fall under the jurisdiction of this Court. 38. The 3rd Defendant in the Counterclaim relies on **Article 162 (2)(b)** of the Constitution of Kenya, **Section 13** of the Environment and Land Court Act, the judicial decisions of **Owners of Motor Vessel Lilian S vs Caltex Oil (Kenya) Limited [1989] KLR 1, Co-operative bank of Kenya Limited vs Patrick Kangethe Njuguna 7 5 Others [2017] KECA 79 (KLR)** and submits that the orders sought in the Plaint relate to land use and this Court therefore has jurisdiction to hear and determine it. 39. The 3rd Defendant in the Counterclaim reiterates that the issues raised in the Defendants Statement of Defence and Counterclaim are with regard to ownership, validity of title, trust and adverse possession which fall under the jurisdiction of this Court. 40. It is the 3rd Defendant in the Counterclaim’s submissions that in the Counterclaim, the Defendants substantively refer to the Charge, the exercise of statutory power of sale and alleged failure by the chargee to issue the requisite statutory notices. 41. It is also the 3rd Defendant in the Counterclaim’s submissions that the Defendants case is premised on the alleged illegality of the exercise of statutory power of sale. 42. It is further the 3rd Defendant in the Counterclaim’s submissions that the Defendants Counterclaim raises issues that relate to both land use and commercial and/or contractual issues. 43. The 3rd Defendant in the Counterclaim submits that the Court does not have jurisdiction to hear the commercial dispute and the Court should therefore dismiss the Counterclaim with costs. **ANALYSIS AND DETERMINATION.** 1. After considering the pleadings, the evidence adduced by the Plaintiff in the main suit, Defendants in the main suit, 3rd Defendant in the Counterclaim and their submissions, it is my view that the following issues arise for determination; 1. ***Whether this Court has jurisdiction to hear and determine this suit.*** 2. ***Whether the 3rd Defendant in the Counterclaim properly exercised its statutory power of sale.*** 3. ***Whether the prayers sought in the Further Amended Defence and Counterclaim should be granted.*** 4. ***Whether the prayers sought in the Further Amended Plaint should be granted.*** 5. ***Who should bear costs of the suit.*** **SUMMARY OF EVIDENCE AND DOCUMENTS.** 1. It is the Plaintiff’s case that his brother and him purchased land parcel No. **Kericho/Roret/646** at a public auction on 9th January, 1997. 2. It is also the Plaintiff’s case that the said parcel of land was sold at a public auction by Kenya Commercial Bank Limited, the 3rd Defendant in the counterclaim. 3. It the Plaintiff’s case that at the time of purchase of the suit land, it was registered in the name of the Defendants’ father one **Henry Taita Tum** and had been charged as security for a loan. 4. It is further the Plaintiff’s case that the suit parcel was registered in their names on 6th February, 2009. 5. It is the Plaintiff’s case that to date the Defendants have refused to vacate the suit parcel necessitating the filing of the present suit. 6. The Plaintiff produced a copy of the title deed for land parcel No. **Kericho/Roret/646** as **Exhibit P1**. It is issued to **Avtar Singh Bachu** of ID No. 258275 and **Jagjeet Singh Virdee** of ID No. 198495 P.O Box 239 Kericho on 6th February, 2009. The title deed shows that the suit land measures 5.1 Ha. 7. The Plaintiff also produced a copy of the title deed issued to **Henry Taita Tum** as **Exhibit P2**. It was issued on 14th May, 1986 and it shows that the said parcel of land measures 5.1 Ha. On page 3 under Part C - encumbrances section, there is an entry at No. 5 which is dated 14th May, 1986. The entry is that there was a charge registered over the said parcel of land by Kenya Commercial Bank to secure the sum of Kshs. 250,000/=. 8. A copy of a Memorandum of sale dated 9th January, 1997 was produced as **Exhibit P3**. It shows that land parcel No. **Kericho/Roret/646** registered in the name of **Henry Taita Tum** was to be sold at a public auction at Uhuru Gardens Kericho by **Express Services Agency (k).** The sale was to be conducted under the instructions of Kenya Commercial Bank Limited. It is signed by **Avtar Singh Bachu** and **Jagjeet Virdee** on 9th January, 1997 upon payment of Kshs. 208,750/= to **Express Services Agency**. It also shows that the balance of the purchase price is to be paid to the Chargee’s advocates within thirty days. It is drawn by **Hamilton, Harrison & Mathews** Advocates and signed in the presence of **S.K Oboso** Advocates. 9. A copy of a Notification of Sale was produced as **Exhibit P4.** It is issued by **Express Services Agency (Kenya)** to **Henry Taita Tum.** It states that **Express Services Agency (Kenya)** has been instructed by **Hamilton Harrison & Mathews Advocates** on behalf of their client **Kenya Commercial Bank Limited** to sell land parcel No. Kericho/Roret/646 on 9th January, 1997 at 11:30 am. 10. It also states that the sale by public auction is to be done in the exercise of the Chargee’s statutory power of sale under **Section 74** of the **Registered Land Act.** It is copied to Kenya Commercial Bank P.O Box 560 Eldoret, HHM Advocates P.O Box 30333 Nairobi, District Commissioner P. O Box 19 Kericho and Western Express Ltd P.O Box 26 Eldoret. 11. A copy of an application for consent was produced as **Exhibit P5.** The application is made by **Kenya Commercial Bank** to the Kapkatet Land Control Board seeking for the consent to transfer land parcel No. **Kericho/Roret/646** to **Avtar Singh Bachu** and **Jagjeet Virdee**. The said application is not dated. 12. A copy of a consent from the Land Control Board was produced as **Exhibit P6**. It is issued by the Chairman, Bureti Land Control Board to Kenya Commercial Bank Limited on 21st January, 2009. It is for the transfer of land parcel No. **Kericho/Roret/646** from **Kenya Commercial Bank** to **Avter Singh Bachu** and **Jagjeet Virdee**. 13. A copy of a Transfer by Chargee in Exercise of Power of Sale was produced as **Exhibit P7**. It is for the transfer of land parcel No. **Kericho/Roret/646** by **Kenya Commercial Bank** to **Avtar Singh Bachu** and **Jagjeet Virdee** upon payment of a consideration of Kshs 835,000/=. It was presented for registration on 29th January, 2009 under presentation book No. 65 of 2009. 14. The Defendants’ case (The Defendants in the main suit) on the other hand is that their father **Henry Taita Tum** (deceased) was the registered owner of land parcel No. **Kericho/Roret/646.** 15. It is also their case that their deceased father gave his friend one **Chepkwony**, a copy of the title deed of the suit parcel so that he can use it as security for a loan from Kenya Commercial Bank. 16. It is further their case that the said **Chepkwony** defaulted in the repayment of the loan and failed to inform their deceased father of the default. 17. It is their case that they later decided to follow up with the bank and that is when they realized that the suit parcel had been sold. 18. It is also the Defendants case that they did not receive any notices from Kenya Commercial Bank and they therefore seek that the said sale be nullified. 19. The Defendants did not produce any documents in support of their case. 20. The 3rd Defendant in the Counterclaim’s case is that vide a charge dated 15th May, 1986, it charged land parcel No. **Kericho/Roret/646** that belonged to **Henry Taita** (deceased). 21. It is also their case the Chargor failed to repay the loan and it therefore instructed **Express Services Agency Kenya** to effect its statutory power of sale under **Section 74** of the Registered Land Act. 22. It is further their case that the requisite notices were issued before the suit parcel was sold at a public auction on 9th January, 1997. 23. A copy of a valuation report was produced as **Exhibit D1(cc).** The report is prepared by Highlands Valuers and Estate Agents and it is for land parcel No. **Kericho/Roret/646**. It is dated 13th August, 1996 and it is addressed to the Manager, Kenya Commercial Bank Ltd, Eldoret. The report states that the value of the suit parcel is Kshs. 820,000/=. The report is signed by **S.K Chemelil** on behalf of Highlands Valuers. 24. A copy of a Memorandum of Sale dated 9th January, 1997 was produced as **Exhibit D2(cc)**. The said document was also produced by the Plaintiff as **Exhibit P3** . Its contents have been set out in the preceding paragraphs. 25. A copy of a Cheque dated 9th January, 1997 was produced as **Exhibit D3(cc)**. It is issued to Express Service Agency for the sum of Kshs. 208,750/= and is drawn on Kenya Commercial Bank. 26. A copy of a letter dated 10th January, 1997 written by **P. M Ndirangu** for Express Services Agency and addressed to Hamilton, Harrison & Mathews Advocates was produced as **Exhibit D4 (cc)**. The subject of the said letter is “*HCCC No. 5904 of 1989 Kenya Commercial Bank Limited versus Western Express Limited*”. The contents of the said letter were set out in detail in the evidence of the 3rd Defendant in the Counterclaim. 27. A copy of a letter dated 10th January, 1997 written by **Jagjit Singh Virdee** and addressed to Express Services Limited was produced as **Exhibit D5 (cc).** The subject of the said letter is “*Plot 646 at Roret*”. **DW1** set out in great detail the contents of the said letter in his evidence. 28. A copy of a letter dated 16th January, 1997 written by Hamilton Harrison and Mathews was produced as **Exhibit D6(cc).** The letter is addressed to Express Services Agency and its subject is “*High Court Civil Case No. 5904 of 1989 Kenya Commercial Bank Limited versus Western Express Limited*”. The contents of the said letter were set out detail by **DW1** in his evidence. **A. Whether this Court has jurisdiction to hear and determine this suit.** 1. The Plaintiff submits that the Defendants counterclaim raises the following issues; * 1. ***Whether the 3rd Defendant in the Counterclaim complied with Section 74 of the Registered land Act in exercising its statutory power of sale.*** 2. ***Whether the charge was valid.*** 3. ***Whether statutory notices were served and whether the auction was legal.*** 2. The Plaintiff also submits that the Environment and Land Court does not have jurisdiction to hear and determine the said issues as they fall under the commercial jurisdiction of the High Court. 3. The Defendants submit that in their counterclaim, they have raised issues over service of statutory notices and the exercise of the statutory power of sale as grounds to impeach the Plaintiff’s title. 4. The Defendants also submit that this Court has jurisdiction to hear and determine the said issues. 5. The 3rd Defendant in the Counterclaim submits that the Counterclaim raises issues relating to land coupled with commercial issues which issues this Court does not have jurisdiction to determine. 6. They therefore seek that the Defendants Counterclaim be dismissed with costs. 7. In the judicial decision of **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR** the Court stated as follows; ***“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”*** (Emphasis mine) 1. The Supreme Court in **Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR** held as follows on jurisdiction; ***“(68) A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”*** (Emphasis mine) 1. In the present matter, there are two suits. The main suit and the Counterclaim. In the main suit, the Plaintiff seeks to assert his rights over the suit parcel. He contends that he purchased the suit parcel at a public auction on 9th January, 1997, was issued with a title deed on 6th February, 2009 and the Defendants have refused to give him vacant possession. The Plaintiff therefore seeks for orders of eviction against the Defendants. 2. In the Counterclaim, the Defendants contend that their father, **Henry Taita Tum** (deceased) was not served with any notices as required under **Section 74(1)** of the **Registered Land Act** (repealed) and therefore the purported sale of the suit parcel did not adhere to the statutory provisions. 3. The Defendants therefore seek that the Court issues a declaration that the public auction conducted on 9th January, 1997 was null and void among other prayers. 4. Essentially, the Plaintiff’s claim to the suit parcel stems from the sale to him and his brother by Kenya Commercial Bank in exercise of its rights as a Chargee. 5. Conversely, the Defendants in their Counterclaim, challenge the validity of the said sale by contending that they were not served with the requisite notices. 6. The Court of Appeal in **Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] eKLR** held as follows; “***40. To the appellant, the charge was an instrument granting an interest in the land, hence jurisdiction in the matter lay with the ELC. However, under Section 2 of the said Act, an instrument is a writing or enactment which creates or affects legal or equitable rights and liabilities. For the purposes of this suit, that instrument was the charge. However, it bears repeating that the cause of action herein was never the charge (instrument) but the amounts due and owing thereunder. Neither the charge instrument nor the creation of an enforceable interest thereunder, were disputed. The main questions to be determined were the tabulation of the sums owing and whether statutory notices had issued prior to the attempted statutory sale.*** ***41. Furthermore, the jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act ought to be understood within the context of the Court’s jurisdiction to deal with disputes connected to ‘use’ of land as discussed herein above. Such contracts, in our view, ought to be incidental to the ‘use’ of land; they do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court…”*** (Emphasis mine) 1. The Court of Appeal in **P.J. Dave Flowers Limited v Limuru Hills Limited & 2 others [2022] KECA 129 (KLR)** considered the determination in **Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others** (supra)and held as follows; ***“19. The relationship between the parties and the prayers sought in the Cooperative Bank Case were distinctly different. The applicant therein was the chargor, who sought to restrain the chargee from placing advertisements for the sale of the suit properties therein by public auction or offering the said properties for sale by public auction or otherwise, and from taking any further steps in the exercise of its statutory power of sale. This Court found that this relationship arising from a charge had nothing to do with use of the land, and was limited to ensuring that the chargee is assured of the repayment of the money he has advanced the chargor. Further, that a charge did not constitute use of land within the meaning of Article 162 of the Constitution, and the cause of action therein was not the validity of the charge, but a question of accounts.*** ***20. In the present appeal, the Appellant clearly had an interest in the suit premises as a purchaser thereof, as did the 2nd Respondent who sought to dispose of the said property to realize its security. It is notable that it was held in the Co-operative Bank Case that the rights acquired by a chargee in land are limited to the realization of the security so advanced. Both parties therefore had acquired interests that conferred jurisdiction on the ELC to hear and determine the applications before it, and the ELC did not err in doing so.”*** (Emphasis mine) 1. In the judicial decision of **Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & another [2018] KEELC 1599 (KLR)** the Court held as follows; ***“30. In the matter before me, the issue of accounts has not arisen at all, even in the periphery… The agreed issues, which I elaborated earlier in this ruling, all concern the manner in which the bank conducted the sale, and question whether the title of the 2nd defendant, is a good title or ought to be revoked for having been acquired fraudulently. In fact, the plaintiff in her prayers, has explicitly asked this court to cancel the sale of 28 March 2002, which if allowed, may lead to the cancellation of the title of the 2nd defendant. The counterclaim that has been filed, seeks vacant possession. These are land matters relating to title and use and occupation of land, for which it is the ELC which is the court with jurisdiction. The High Court, by dint of Article 165 (5) of the Constitution, does not have jurisdiction to hear these issues.”*** (Emphasis mine) 1. As stated, the Plaintiff purchased the suit parcel of land at a public auction, was issued with a title deed and he now seeks that the Defendants give him vacant possession. 2. On the other hand, the Defendants contend that their deceased father was not served with the requisite statutory notices and therefore the 3rd Defendant in the Counterclaim did not properly exercise its statutory power of sale. They seek among other prayers, that the auction be declared null and void. 3. As was held in **P.J. Dave Flowers Limited v Limuru Hills Limited & 2 others** (supra) and **Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & another** (supra) I find that the said issues fall within jurisdiction of the Environment and Land Court. I shall therefore proceed to determine the suit on its merits. 4. As the Court proceeds to make a determination in this matter, the following facts should be borne in mind; 1. ***Land parcel No. Kericho/Roret/646, hereinafter referred to as the suit parcel of land, was registered in the name of Henry Taita Tum (Deceased), the father of the 1st to 7th Defendants on 14th May, 1986.*** 2. ***The suit parcel of land was sold to the Plaintiff and one*** ***Jagjeet Singh Virdee (Deceased) at a public auction on 9th January, 1997.*** 3. ***The suit parcel of land was registered in the name of the Plaintiff and Jagjeet Singh Virdee (Deceased) on 6th February, 2009, this was twelve years after the auction took place.*** 4. ***The 1st to 7th Defendants’ deceased father, one Henry Taita Tum filed Kericho HC Case No. 49 of 2009 (OS) seeking that he be declared to have acquired the suit parcel of land by way of adverse possession. Judgement was delivered on 24th February, 2010 and the Court dismissed the suit.*** 5. ***The Plaintiff and Jagjeet Virdee (Deceased) filed the present suit on 27th April, 2009, against Henry Taita Tum (Deceased) twelve years after the auction took place and two and a half months after they were registered as owners.*** 6. ***Henry Taita Tum (Deceased) filed a Statement of Defence and Counterclaim on 19th May, 2010 and pleaded that he has acquired the suit parcel of land by way of adverse possession.*** 7. ***Vide a ruling delivered on 18th May, 2018, Henry Taita Tum (Deceased) was substituted by Joseph Cheruiyot the 1st Defendant in the main suit. Joseph Cheruiyot was granted leave to amend the Statement of Defence and Counterclaim. The Statement of Defence and Counterclaim was amended on 25th May, 2018 and filed on the same date.*** 8. ***On 22nd May, 2019, the 1st Defendant in the main suit further amended the Statement of Defence and Counterclaim. The amendments did away with the averments on adverse possession and introduced the issue of trust.*** 9. ***The Further Amended Statement of Defence and Counterclaim was filed on 23rd May, 2019.*** 10. ***No documents were produced in support of the Defendants case.*** **B. Whether the 3rd Defendant in the Counterclaim properly exercised its statutory power of sale.** 1. It is not in dispute that land parcel No. Kericho/Roret/646 was registered in the name of **Henry Taita Tum** (deceased). 2. It is also not in dispute that a charge was registered over the suit parcel of land in favour of the 3rd Defendant in the Counterclaim as security for a loan. 3. It is further not in dispute that there was default in the repayment of the loan and the 3rd Defendant in the Counterclaim exercised its statutory power of sale. 4. What is in dispute is whether the 3rd Defendant in the Counterclaim properly exercised its statutory power of sale. 5. I will first address the issue whether the requisite statutory notices were issued. 6. The public auction took place on 9th February, 1997. The law applicable at that time was the Registered Land Act, Cap 300(repealed). 7. **Section 74** of the Registered Land Act (repealed) provided as follows; ***“(1) If default is made in payment of the principal sum or of any interest or any other periodical payment or of any part thereof, or in the performance or observance of any agreement expressed or implied in any charge, and continues for one month, the chargee may serve on the chargor notice in writing to pay the money owing or to perform and observe the agreement, as the case may be.*** ***(2) If the chargor does not comply, within three months of the date of service, with a notice served on him under sub-section (1), the chargee may -*** ***(a) appoint a receiver of the income of the charged property; or*** ***(b) sell the charged property:*** ***Provided that a chargee who has appointed a receiver may not exercise the power of sale unless the chargor fails to comply, within three months of the date of service, with a further notice served on him under that subsection*** [Emphasis Mine] 1. Before proceeding any further, it is important to note that the Defendants contend that their deceased father, **Henry Taita Tum** (Deceased) gave the title deed of the suit property to **Reuben Chepkwony** to use as security for a loan from the 3rd Defendant in the Counterclaim. 2. The 3rd Defendant in the Counterclaim did not lead evidence as to who between **Henry Taita Tum** (Deceased) and **Reuben Chepkwony** was given the said loan and none of the parties produced the charge document. 3. Nevertheless, what is evident is that land parcel No. **Kericho/Roret/646** was charged as a security for a loan. 4. **Section 74(1)** of the Registered Land Act (Repealed) provides that if there is default in the payment of the principal sum, interest or any periodical payment, the Chargee may serve upon the Chargor a notice in writing requiring the payment of the said sum of money within three months. 5. The Defendants contend that their deceased father was not served with the statutory notice as provided under **Section 74(1)** of the **Registered Land Act** (Repealed) while on the other hand, the 3rd Defendant in the Counterclaim contends that it issued the requisite notices. 6. It is important to note that the notice required to be issued under **Section 74(1)** of the **Registered Land Act** (Repealed) is a notice requiring that the money owing be repaid within three months failure of which the chargee may appoint a receiver of the income of the charged property or sell the charged property. 7. **Joseph Barngetuny**, the Credit Administration Manager of the 3rd Defendant in the Counterclaim testified as **DW1**. During cross examination, he admitted that he could not verify the issue whether the notification of sale was issued and confirmed that in his witness statement, he stated that a Notification of Sale dated 5th December, 1996 was published in a daily newspaper of wide circulation but did not produce the advertisement in evidence. 8. In the judicial decision of **Joseph Ojwando Okanda v Co-operative Bank of Kenya Ltd [2016] KEHC 6361 (KLR)** the Court held as follows; ***“The superior courts have in several decisions including that of Ochieng and Another -V- Ochieng and Others [1995-98] 2 E.A 260 taken the position that it is the duty of the Chargee to make sure that there is compliance with the requirements of Section 74(1) of the Registered Land Act (Repealed). That burden is not in any way on the Chargor. That once the Chargor alleges non-receipt of the statutory notice it is for the Chargee to prove that such notice was infact (sic) sent. The Respondent herein failed to produce the certificate of postage to proof (sic) that the statutory notice they issued dated 9th April 1999 was indeed posted to the Appellant's address. In the absence of such proof, the Respondent's power of sale had not arisen by the time they instructed the auctioneer to place the advertisement to auction the charged property. That finding suffices to deal with this appeal.”*** (Emphasis mine) 1. In the above cited judicial decision, the Court relied on **Ochieng and Another -V- Ochieng and Others** [**1995-98] 2 E.A 260** where it was held that it is the duty of the Chargee to ensure compliance with the requirements of **Section 74(1)** of the Registered Land Act (Repealed). 2. In the present suit, the 3rd Defendant in the Counterclaim’s witness could not verify whether the notification of sale was issued and confirmed that even though in his witness statement, he stated that a Notification of Sale dated 5th December, 1996 was published in a daily newspaper of wide circulation, he did not produce the advertisement in evidence. 3. It follows that the 3rd Defendant in the Counterclaim’s power of sale had not accrued at the time the suit parcel of land was sold and therefore it did not properly exercise its statutory power of sale. **C. Whether the prayers sought in the Further Amended Defence and Counterclaim should be granted.** 1. Under issue **(B)** above, I have made the finding that the 3rd Defendant in the Counterclaim’s statutory power of sale had not accrued at the time the suit parcel of land was sold. What then are the remedies available to the Defendants? 2. The prayers sought by the Defendants in the Further Amended Defence and Counterclaim have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder; ***(b) A (sic) declaration that the sale of parcel No. LR No. Kericho/Roret/646 by a public auction conducted on 9th January, 1997 and subsequent transfer of it to the Plaintiffs (sic) is null and void.*** ***(c) A declaration that the Plaintiffs (sic) are holding titles to the suit land in trust for the Defendant (sic).*** ***d)An order terminating the said trust.*** ***(e)An order directing the Plaintiff to sign necessary documents restoring ownership of the suit property in the names Henry Taita Tum (sic) and in default thereof the Deputy Registrar of this Honourable Court to do so on their behalf.*** ***(f) A permanent injunction do issue restraining the Plaintiff’s, their (sic) servants, workmen, agents or any persons acting under their (sic) instructions from entering and/or interfering with LR No. Kericho/Roret/646 in any manner prejudicial to the Defendant (sic).*** 1. Under prayer (**b**) in the Further Amended Defence and Counterclaim, the Defendants seek that the Court issues a declaration that the public auction conducted on 9th January, 1997 and the subsequent transfer of the suit parcel of land to the Plaintiff was null and void. 2. Under prayer (**e**) in the Further Amended Defence and Counterclaim, the Defendants seeks that the Court issues an order directing the Plaintiff to sign the relevant documents to restore the ownership of the suit parcel of land to **Henry Taita Tum** (Deceased). 3. **Section 77 (3) & (4)** of the Registered Land Act (Repealed) provides as follows; ***“(3) A transfer by a chargee in exercise of his power of sale shall be made in the prescribed form, and the Registrar may accept it as sufficient evidence that the power has been duly exercised, and any person suffering damage by an irregular exercise of the power shall have his remedy in damages only against the person exercising the power.*** ***(4) Upon registration of the transfer, the interest of the chargor as described therein shall pass to and vest in the transferee freed and discharged from all liability on account of the charge, or on account of any other encumbrance to which the charge has priority (other than a lease, easement or profit to which the chargee has consented in writing).*** 1. In the judicial decision of **Munidi Okemba Lore v Lucy Wangui Gachara [2014] eKLR** the Court held as follows; ***“54. In the case of Krobought Grant Vs Kenya Commercial Finances Co. Ltd & 2 others -Civil Appeal No. 227 of 1995, it was held that a purchase at a public auction was protected by Section 69 B of the ITPA (in this case section 99(4) of the Land Act) and could only lose the protection if it was an improper or irregular exercise of the statutory power of sale of which the purchaser had notice of.”*** (Emphasis mine) 1. The Court of Appeal in **Nyangau v Heritage Insurance Company & 2 others (Civil Appeal 18 of 2019) [2025] KECA 1453 (KLR) (31 July 2025) (Judgment)** held as follows; ***“…Besides, even if the appellant was able to prove any irregularities in the manner the auction was conducted, which he failed to do, he would only be entitled to an award of damages against the 1st and 3rd respondents and not the nullification of the auction.*** ***In any event, it seems quite clear to us that a purchaser of property sold in the exercise of a chargee’s statutory power of sale is protected even in cases where the person had actual notice that the charge (sic) had not properly exercised that statutory power of sale in terms of procedure.*** ***Further, even assuming that the auction was not properly conducted as alleged by the appellant, unless it is demonstrated that the 2nd respondent was privy to the fraud or other irregularities in the disputed auction, the sale of the suit property cannot be impugned. This Court in Captain Patrick Kanyagia and Another v Damaris Wangeci and others, (supra) held that there is no duty cast, in law, on an intending purchaser at an auction sale, properly advertised, to inquire into the rights of the mortgagee to sell.”*** (Emphasis mine) 1. **Section 99(4)** of the Land Act provides as follows; **“*(4) A person prejudiced by an unauthorised, improper or irregular exercise of the power of sale shall have a remedy in damages against the person exercising that power.”*** 1. **Section 99(4)** of the Land Act is in *pari materia* with **Section 77(3)** of the **Registered Land Act** (Repealed). 2. As was held in **Munidi Okemba Lore v Lucy Wangui Gachara** (supra)and **Nyangau v Heritage Insurance Company & 2 others** (supra),a purchaser at a public auction is protected and a person aggrieved with an irregular exercise of statutory power of sale shall only be entitled to an award of damages. 3. In the present suit, it is my finding that the Plaintiff, being a purchaser at a public auction, is protected and I decline to issue orders nullifying the auction. Consequently, prayers (**b**) and (**e**) of the Amended Defence and Counterclaim fail. 1. Under prayers **(c)** and **(d)** of the Amended Defence and Counterclaim, the Defendants seek that the Court finds that the Plaintiff is holding the suit parcel of land in trust for them and that the said trust should be terminated. 2. In the judicial decision of **Kinoti v Nkanata [2026] KEELC 181 (KLR)** the Court held as follows; ***“37. Moreover, it is worthy to underscore that trust can only be established and proven on the basis of the evidence. Absent plausible; cogent; and compelling evidence to demonstrate trust, a Court of law cannot return a favourable finding in favour of the claimant.”*** (Emphasis mine) 1. It is apparent that no evidence was led on the question of trust. Therefore, I decline to find that the Plaintiff is holding the suit parcel of land in trust for the Defendants. 2. Prayer **(f)** seeks an order of permanent injunction. Taking into consideration my finding on other prayers sought, this prayer also fails. 1. As stated in the preceding paragraphs, the only remedy available to the Defendants is damages. Regrettably, this prayer was not sought and evidence also not led. **D. Whether the prayers sought in the Further Amended Plaint should be granted.** 1. The prayers sought in the Further Amended Plaint have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder; 1. ***An eviction order against the Defendants themselves and/or any other persons occupying land parcel number Kericho/Roret/646 under the authority of the Defendants, payment of mesne profits and a vesting order thereof to the Plaintiffs.*** 2. ***A permanent injunction restraining the Defendants and/or any other person occupying land parcel number Kericho/Roret/646 under the authority of the Defendants from trespassing into, entering and/or in any other way interfering with the Plaintiffs’ occupation, use, possession, and/or quiet enjoyment of the suit land.*** 3. ***Costs of this suit.*** 4. ***Interest on (c) above.*** 5. ***Any other relief deemed apt by this Honourable Court.*** 2. Among the prayers sought by the Plaintiff is a prayer for mesne profits. In **Mkalla v Kikopi & another (Environment & Land Case 83 of 2016) [2022] KEELC 3109 (KLR) (28 June 2022) (Judgment)** the Court held as follows; ***“On the issue whether the plaintiff is entitled to mesne profits, mesne profits are special damages which must be specifically pleaded and proved. The plaintiff did not specifically lead any evidence to prove mesne profits, therefore this limb of his claim fails.”*** (Emphasis mine) 1. The Plaintiffs did not specifically plead and prove mesne profits. Therefore, this prayer fails. 2. Given my finding on issue (**C**) above, I find that the prayers sought in the Further Amended Plaint, save for the prayer for mesne profits, are merited. **E. Who should bear costs of the suit.** 1. The general rule is that costs shall follow the event. This is in accordance with the Provisions of **Section 27** of the **Civil Procedure Act (Cap. 21).** A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. **DISPOSITION.** 1. In the result, I find and order as follows; 1. ***The Defendants and any other persons claiming through them shall vacate land parcel No. Kericho/Roret/646 within 90 (ninety) Days of the date hereof.*** 2. ***In default of (a) above, an Eviction Order shall issue.*** 3. ***A permanent injunction is hereby issued restraining the Defendants and any other persons claiming through them from interfering with the Plaintiff’s occupation, use, possession, and/or quiet enjoyment of land parcel No. Kericho/Roret/646.*** 4. ***The Defendants Counterclaim is hereby dismissed with costs.*** 5. ***The Plaintiff shall have costs of the suit.*** 2. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 14TH DAY OF MAY, 2026.** **L. A. OMOLLO** **JUDGE.** **In the presence of: -** **Mr. Sigira for the Plaintiffs** **­­­­­­­­­­­­­­­Mr. Migiro for the Defendants.** **Mr. Ombui for the 3rd Defendant in the Counterclaim.** **Mr. Makori - Court Assistant**