[2015] KEHC 1567 (KLR)
The court found that the highest bidder at the auction failed to pay the required 25% of the bid price as mandated by the auction terms and the Civil Procedure Rules. The evidence, including the letter from the auctioneers, confirmed the default. Under Order 22 rule 71, the court is empowered to order a resale of...
Source-derived case information.
- Citation
- [2015] KEHC 1567 (KLR)
- Parties
- Plaintiff: Daniel Ojijo Ogonda; Plaintiff: George Omondi Ogolo; Defendant: Archie Chamugwana Mgondah Viany
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 17 of 2013
- Procedural Posture
- Civil Suit / Ruling on Application to Cancel Vesting Order and Re Auction Property
- Outcome
- Application granted as prayed.
- Judges
- SJ Chitembwe
- Legal Topics
- Auction Sale Failure, Vesting Orders, Property Resale, Judicial Sale Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Ojijo Ogonda
Plaintiff
George Omondi Ogolo
Plaintiff
Archie Chamugwana Mgondah Viany
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Cancel Vesting Order and Re Auction Property
Legal Issues
- 1 Whether the vesting order relating to Plot Number L. R. 22643 sub-division number 1796 section 111 Mainland North should be cancelled due to purchaser's default.
- 2 Whether the property should be re-auctioned after the highest bidder failed to pay the required 25% of the bid price.
Ratio Decidendi
The court found that the highest bidder at the auction failed to pay the required 25% of the bid price as mandated by the auction terms and the Civil Procedure Rules. The evidence, including the letter from the auctioneers, confirmed the default. Under Order 22 rule 71, the court is empowered to order a resale of the property in such circumstances. Consequently, the court held that the application to cancel the vesting order was merited and granted the orders sought, including the re-auction of the property.
Court Disposition
Application granted as prayed.
Orders
- The vesting order issued in relation to Plot Number L. R. 22643 sub-division number 1796 section 111 Mainland North is cancelled.
- The property shall be re-auctioned.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
CIVIL SUIT NO.17 OF 2013
DANIEL OJIJO OGONDA )
GEORGE OMONDI OGOLO ) ..................................................................... PLAINTIFFS
VRS
ARCHIE CHAMUGWANA MGONDAH VIANY ….......................................... DEFENDANTS
RULING
The application dated 18/9/2015 seeks to cancel the vesting order issued by this court in relation to Plot Number L. R. 22643 sub-division number 1796 section 111 Mainland North. The application also seeks an order to have the property re-auctioned. The main gist of the matter is that the property was sold at an auction on 30th August, 2014. The highest bidder, Lawrence Musyoki Isika failed to pay the required 25% of the bid price.
The title of the application is that it is brought under Order 71 rule (1) of the Civil Procedure Act. I believe it was meant to be Order 22 rule 71. That order allows for the reselling of the property if the purchaser fails to pay the auction amount within the agreed period. I have read the letter dated 18th August, 2015 from T. P. Top Auctioneers and it is indicated that the purchaser failed to pay the required amount.
I do find that the application dated 18/9/2015 is merited and is granted as prayed.
Dated, signed and delivered at Malindi this 5th day of November, 2015.
SAID J. CHITEMBWE
JUDGE