[2016] KEELC 1000 (KLR)
The court found that the issues for determination, as previously set out in its ruling, did not require the evidence of a financial expert. The matters to be resolved were limited to the validity of the sale, the notices, the execution and defects of the memorandum of sale, the deposit of the purchase price, and the...
Source-derived case information.
- Citation
- [2016] KEELC 1000 (KLR)
- Parties
- Plaintiff: Michael Kimutai Ronoh; Plaintiff: Anne Jerotich Ronoh; Plaintiff: Rose Chepchirchir Ronoh; Defendant: Consolidated Bank of Kenya Ltd; Interested Party: John Kigen; Interested Party: Kiplagat Chebii; Interested Party: Irene Chebeni
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 292 of 2014
- Procedural Posture
- Environment and Land Court Case / Ruling on Admissibility of Evidence
- Outcome
- The evidence of PW2 is struck out as irrelevant, with costs in the cause.
- Judges
- A Ombwayo
- Legal Topics
- Statutory Power of Sale, Right of Redemption, Public Auction Procedure, Memorandum of Sale, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Kimutai Ronoh
Plaintiff
Anne Jerotich Ronoh
Plaintiff
Rose Chepchirchir Ronoh
Plaintiff
Consolidated Bank of Kenya Ltd
Defendant
John Kigen
Interested Party
Kiplagat Chebii
Interested Party
Irene Chebeni
Interested Party
Procedural Posture
Environment and Land Court Case / Ruling on Admissibility of Evidence
Legal Issues
- 1 Whether the evidence of the financial expert (PW2) is relevant to the issues for determination in the case.
- 2 Whether the sale conducted on 14.7.2014 was valid, including the validity of notices and compliance with statutory requirements.
- 3 Whether the right of redemption was extinguished in the circumstances of the case.
Ratio Decidendi
The court found that the issues for determination, as previously set out in its ruling, did not require the evidence of a financial expert. The matters to be resolved were limited to the validity of the sale, the notices, the execution and defects of the memorandum of sale, the deposit of the purchase price, and the extinguishment of the right of redemption. Since none of these issues necessitated expert financial testimony, the evidence of PW2 was deemed irrelevant and was accordingly struck out. The court emphasized that only evidence directly related to the identified legal issues should be admitted, and any extraneous or irrelevant testimony must be excluded to maintain the integrity...
Court Disposition
The evidence of PW2 is struck out as irrelevant, with costs in the cause.
Orders
- The evidence of PW2 is hereby struck out from the record.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
ELC NO. 292 OF 2014
MICHAEL KIMUTAI RONOH...............................................1ST PLAINTIFF
ANNE JEROTICH RONOH..................................................2ND PLAINTIFF
ROSE CHEPCHIRCHIR RONOH........................................3RD PLAINTIFF
AND
CONSOLIDATED BANK OF KENYA LTD................................DEFENDANT
AND
JOHN KIGEN.......................................................1ST INTERESTED PARTY
KIPLAGAT CHEBII..............................................2ND INTERESTED PARTY
IRENE CHEBENI..................................................3RD INTERESTED PARTY
RULING
On the 2. 7.2015, the hearing of this matter proceeded partially when the PW2, an accountant was called to testify. He gave evidence in chief and was cross examined by Mr. Odhiambo Advocate for the defendants.
On the 30. 9.2015, when PW2 appeared for further cross examination, M/s Koech for the Interested Party objected to his evidence and applied for the said evidence to be expunged from record as to issues addressed by the PW2, were determined by the court.
Mr. Odhiambo agreed with M/s Koech on the basis that the only issue before court is whether the sale conducted on 14. 7.2014 was valid and precisely whether the notices were valid.
Mr. Kigamwa argues that in order to determine a valid sale, we need to determine whether the chargee had a right to sell the property which arises from the statutory power of sale which goes hand in hand with the chargor's right of redemption. The plaintiff's position is that his indebtedness has been extinguished. To prove that he is not indebted, he needs to call a financial expert.
I have considered the submissions of all counsels on record and do find that by ruling dated 27. 11. 2016, the court found issues for determination as:
Whether there was an advertisement of the properties as contemplated by the law.
Whether there was actually a sale by public auction.
Whether a Memorandum of Sale was executed and if so where and when such memorandum of sale was executed.
Whether there is any defect in the Memorandum of Sale, and if any, the effect of such defects.
Whether the purchasers made a deposit of 25% of the purchase price at the time of the sale.
Whether the sale of the properties should be upheld.
When the right of redemption is extinguished.
Whether in the circumstances of this case, the right of redemption was extinguished.
None of the issues require the evidence of a financial expert and therefore, I agree with the submission of M/s Koech that the evidence of PW2 should be struck out for being irrelevant and the same is hereby struck out with costs in the cause.
DATED AND DELIVERED AT ELDORET THIS 22ND DAY OF FEBRUARY, 2016.
ANTONY OMBWAYO
JUDGE