https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9586

Kenyanya t/a Bono Agencies v City Council of Nairobi & another (Civil Case 440 of 2010) [2026] KEHC 9586 (KLR) (Civ) (29 June 2026) (Ruling) Neutral citation: [2026] KEHC 9586 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 440 of 2010 SN Mutuku, J June 29, 2026 Between Elijah Okenye Kenyanya t/a Bono Agencies Plaintiff and City Council of Nairobi 1st Defendant Moco Africa Limited 2nd Defendant Ruling 1.This ruling relates to the Notice of Motion dated 15.04.2026 (the Motion) brought by Milton Gitahi (the Applicant). The Motion is brought under Sections 1A, 1B and 3A of the Civil Procedure Act (CPA); Order 40, Rule 1 and Order 50, Rule 1 of the Civil Procedure Rules (CPR); Section 26 and Fourth Schedule of the Auctioneers Act Cap. 526 Laws of Kenya; and Rules 10 and 15(b) of the Auctioneers Rules, 1997. 2.The Motion seeks the following orders:i.Spent.ii.Spent.iii.That the intended sale of the suit motor vehicle scheduled for 15th April 2026 or any other date be declared illegal, null and void for being conducted at a gross undervalue contrary to Rule 15(b) of the Auctioneers Rules, 1997 (which requires the Notification of Sale to state the true value of the property).iv.That a fresh independent valuation of the suit motor vehicle be undertaken by a government-approved valuer pursuant to Rule 10 of the Auctioneers Rules, 1997, and any intended sale be based on the forced value as determined by such valuer.v.That the costs of this Application be provided for. 3.The Motion is supported by grounds found on its body and in the Supporting Affidavit of the Applicant sworn on 13.04.2026 in which it is deposed that he is the Director of Moco Africa Limited (the Judgment Debtor). That following the lifting of the Judgment Debtor’s corporate veil, he is now deemed liable to satisfy the decree issued in this suit. That he is the registered owner and user of the motor vehicle registration number KCR 784J (the subject motor vehicle). That Elijah Okenye Kenyanya T/A Bono Agencies (the Decree Holder) instructed Wright Auctioneers (the Auctioneers) to proclaim and advertise the subject motor vehicle for sale, whilst relying on an inadequately low forced sale value of Kshs. 500,000/- in the absence of any supporting valuation report and that by purporting to sell the subject motor vehicle at an undervalued amount, the Decree Holder and/or the Auctioneers acted in gross violation of the relevant provisions of the Auctioneers Act and Rules which require an auctioneer to act in good faith and to obtain the best reasonable sale price. 4.It was deposed, further, that Rule 15(b) of the Auctioneers Rules stipulates that the true value of the property to be sold ought to reflect in the Notification of Sale. That if permitted to proceed as is, the intended sale will cause the Applicant to suffer grave and irreparable loss and injustice and that in the circumstances, Rule 10 of the Auctioneers Rules permits the Applicant to seek an independent valuation of the subject motor vehicle prior to the auction. Replying Affidavit 5.The Motion is opposed by the Decree Holder through a Replying Affidavit sworn on 20.04.2026. The Decree Holder has deposed that contrary to the averments made by the Applicant, the subject motor vehicle underwent a valuation and a valuation report dated 31.03.2026 issued and that, the intended sale of the subject motor vehicle was advertised in the Standard Newspaper dated 8.04.2026 with the said motor vehicle being subsequently sold to the highest bidder at a total price of Kshs. 300,000/-. 6.The Decree Holder has deposed, further, that the instant Motion has been overtaken by events and that the same has been brought in bad faith. The Decree Holder has termed the Motion as being anchored on untruths and on a concealment of material facts. That the Motion is unmerited and that to grant the prayers sought would prejudice his rights to enjoy the fruits of his judgment. He urged that the court to dismiss the Motion. 7.The Applicant filed a Supplementary Affidavit sworn on 20.05.2026, in which he has deposed that the valuation report tendered by the Decree Holder did not comply with the provisions of the Auctioneers Rules as it did not contain a forced sale value but a mere disposal valuation. That, furthermore, while the valuation report is dated 31.03.2026 it bears a booking date of 14.04.2026 thereby raising questions regarding its authenticity. 8.The Applicant has deposed that the forced sale value of Kshs. 300,000/- indicated in the valuation report is a contradiction to the estimated value of Kshs. 500,000/- indicated in the Notification of Sale, thereby violating Rule 15(b) of the Auctioneers Rules. That the advertisement for the public auction did not mention the valuation report or disclose its existence. That given the condition of the subject motor vehicle, even at the point of valuation, the purported sale at a sum of Kshs. 300,000/- constitutes a gross undervaluation and that the purported sale has not been supported by any sale agreement or transfer documents. 9.The Applicant has deposed that the Motion has not been overtaken by events as claimed. That where it is established that a sale was illegally undertaken, the same can nevertheless be deemed a nullity even after the fact and that the purported advertisement of the intended sale would in no way cure any illegalities evident in the process. 10.The Applicant has reiterated his earlier averment that he stands to suffer substantial and irreparable loss if the Motion is dismissed and urged the court to set aside the purported sale of the subject motor vehicle and order that a fresh valuation be undertaken by an independent valuer. 11.The Decree Holder has sworn a further affidavit on 25.05.2026 in which he has deposed that Rule 10 of the Auctioneers Rules does not require the disclosure of a valuation report at the point of advertisement and that the valuation, advertisement and sale of the subject motor vehicle were undertaken following the Applicant’s refusal and/or neglect to personally sell the said vehicle and to settle the decretal amount owed. 12.He reiterated that the instant Motion has been brought in bad faith and that it is purely a delaying tactic aimed at defeating justice and further delaying the execution process. Parties’ submissions 13.The Motion was canvassed through written submissions. The Applicant has anchored his submissions on Rule 15(b) of the Auctioneers Rules, in arguing that a notification of sale ought to indicate the true value of the property to be sold. That in the present instance, the Decree Holder’s valuer, Pacsun Valuers, indicated the market value of the subject vehicle as being Kshs. 350,000/- while the forced value was Kshs. 300,000/-; whereas in the Notification of Sale, the value of the said vehicle is said to be Kshs. 500,000/-. That the variance amounts to a statutory valuation. He has urged the court to be persuaded by the case of Purbai Gopal Ramji Patel v Asset Recovery Company Ltd & 2 others [2017] KEHC 10061 (KLR) where the High Court, upon finding that the bank and auctioneer in that matter did not comply with the relevant provisions of the Auctioneers Rules, ordered that they do ensure to comply accordingly. 14.The Applicant has submitted that the purported sale of the subject motor vehicle at a sum of Kshs. 300,000/- amounts to equitable fraud and constitutes a gross undervaluation of the value of the said vehicle. That, in addition, this amounts to collusion and/or professional misconduct on the part of the Auctioneers, contrary to Section 26 and the Fourth Schedule of the Auctioneers Act. He relied on the case of Charles Alex Njoroge v National Bank of Kenya Ltd & another [2015] KEHC 8103 (KLR) where it was held that a sale premised on an undervalue and in the absence of a proper valuation, constituted equitable fraud. 15.On whether the instant Motion has been overtaken by events, it is the Applicant’s contention that notwithstanding the fact that the subject motor vehicle has already been sold, where it is established that such sale was irregular or illegal, the same can still be set aside. On this point, the Applicant relied on Karanja v Equity Bank Limited & 2 others [2024] KEELC 6482 (KLR) where an auction sale was nullified on grounds of fraud. 16.The Decree Holder submitted that the Applicant herein has not approached the court with clean hands since he seeks prayers whilst having made no efforts in settling the decretal amount awarded in this suit. He cited Ali v Nyang'ao [2025] KEHC 8735 (KLR) where the court dismissed an application on account of the same having been filed by an applicant with unclean hands and submitted that the sale by way of a public auction was therefore prompted by the Applicant’s deliberate refusal to satisfy the decree herein and that the auction was lawfully undertaken. 17.It is the Decree Holder’s further submission that the Applicant has erroneously applied Rule 15(b) of the Auctioneers Rules, since the same applies to immovable property and yet the subject motor vehicle in this context constitutes movable property. He maintained that prior to the sale of the subject motor vehicle, it was duly valued and a valuation report prepared and therefore the Applicant cannot purport to stop the process of transfer of the subject motor vehicle to the rightful buyer. He relied on National Industrial Credit Bank Limited v S. K. Ndegwa Auctioneer [2005] KECA 22 (KLR) in which the Court of Appeal stated that a judgment debtor can only redeem proclaimed goods by settling the debt in question. Analysis and determination 18.I have considered the Motion and the Replying Affidavit in opposition. The Applicant seeks to declare the intended sale of the subject motor vehicle scheduled for 15.04.2026 illegal, null and void for reasons of undervaluation of the subject motor vehicle contrary to Rule 15(b) of the Auctioneers Rules, 1997. He also seeks an order for fresh independent valuation of the subject motor vehicle to be undertaken pursuant to Rule 10 of the Auctioneers Rules, 1997. 19.It has come out that in the course of these proceedings, the subject motor vehicle was sold in a public auction held on 15.04.2026. This is the same date on which the instant Motion was brought. It is also evident from the material presented to court that by the time this court granted the prayer 2 of the Motion, which prayer sought a temporary injunction as pertains to the sale, that sale had already taken place. The orders of this court granting prayer 2 of the Motion in the interim was therefore granted in vain. 20.While aware that the orders sought in this Motion have been overtaken by events, I am of the considered view that it would be in the best interest of justice to determine whether the sale of the subject motor vehicle was lawful and regular. 21.I have considered the Applicant’s contention that the sale is irregular and unlawful for non-compliance with Rule 15(b) of the Auctioneers Rules. The Decree Holder, on the other hand, has maintained that the sale was lawfully and regularly conducted and therefore, the Motion is unmerited. He has contended that Rule 15(b) of the Auctioneers Rules is inapplicable to the circumstances of this case. My reading of Rule 15(b) of the Auctioneers Rules clearly shows that this provision relates to immovable property which the subject motor vehicle is not and therefore it is not relevant to this Motion. 22.The relevant provision is Rule 12 of the Auctioneers Rules which caters for movable property other than perishables and livestock. It stipulates that:“Upon receipt of a court warrant or letter of instruction the auctioneer shall in case of movables other than goods of a perishable nature and livestock—(a)record the court warrant or letter of instruction in the register;(b)prepare a proclamation in Sale Form 2 of the Schedule indicating the value of specific items and the condition of each item, such inventory to be signed by the owner of the goods or an adult person residing or working at the premises where the goods are attached or repossessed, and where any person refuses to sign such inventory, the auctioneer shall sign a certificate to that effect;(c)in writing, give to the owner of the goods seven days notice in Sale Form 3 of the Schedule within which the owner may redeem the goods by payment of the amount set forth in the court warrant or letter of instruction;(d)on expiry of the period of notice without payment and if the goods are not to be sold in situ, remove the goods to safe premises for auction;(e)ensure safe storage of the goods pending their auction;(f)arrange advertisement within seven days from the date of removal of the goods and arrange sale not earlier than seven days after the first newspaper advertisement and not later than fourteen days thereafter...” 23.Although the Applicant has relied on an erroneous provision, this court will not use that error to deny him audience. This court will treat it as an error that is curable in the name of substantive justice. 24.The Applicant has argued that the amount indicated in the Notification/Proclamation of Sale constitutes an undervalue of the subject motor vehicle, which is inconsistent with the value of the subject motor vehicle indicated in the valuation report. 25.The record of the court shows that the value of the subject motor vehicle, as shown in the Proclamation Notice dated 17.03.2026 and marked as Annexure “MG” in the Applicant’s Supporting Affidavit, was set at Kshs. 500,000/- while the condition was listed as being ‘fair.’ I have seen the valuation report by Pacsun Valuers & Assessors Limited, dated 31.03.2026, annexed to the Replying Affidavit of the Decree Holder. The market value of the subject motor vehicle is indicated as Kshs. 350,000/- and forced sale value is indicated as Kshs. 300,000/-. 26.From my careful reading of the material placed before the court, I have not come across any evidence to persuade me to fault the variance between the value indicated in the Proclamation Notice and that indicated in the valuation report. 27.I have read Rule 10 of the Auctioneers Rules. It provides that:A debtor may, at any time before the property seized or repossessed is sold, apply to a court for an order that the property be valued by an independent valuer 28.The Applicant herein, was at liberty to move this court as provided under the above Rule before the subject motor vehicle was sold for an order allowing a valuation of the same. As indicated in this ruling, on the date the Applicant approached this court seeking to restrain the execution process on 15.04.2026, the said execution was taking place. It is obvious to this court that the Applicant had not sought leave of the court to have the subject motor vehicle valued as provided under Rule 12. It seems to me that the Applicant came to court too late in the day and failed to stop the execution process. It is due to that delay in approaching the court early enough that led to this court issuing orders in vain on the 15.04.2026. 29.Upon my consideration of the material on record, I have not seen evidence indicating that the public sale of the subject motor at a sum of Kshs. 300,000/- constituted a gross undervaluation. The Applicant did not tender any evidence, whether by way of an independent valuation report or other relevant material, indicating that the said subject motor vehicle was grossly undervalued or that the sale was marred with fraud and irregularities, in order to necessitate an order nullifying the material sale. 30.I have noted, from the record, that the newspaper advertisement for the intended sale of the subject motor vehicle was made in the Standard Newspaper on 8.04.2026 whereas the sale by way of a public auction took place on 15.04.2026. It remains unclear why the Applicant waited until the date of the actual sale, to move this court, given that there is no indication that the Applicant was previously unaware of the intended sale. In my view, the Applicant had ample opportunity to seek an independent valuation of the subject motor vehicle but did not. Now that the sale has since taken place, I find it belated for him to seek to challenge the proclamation and sale on the grounds mentioned hereinabove and to seek an independent valuation of the subject motor vehicle after the fact, and without any reasonable explanation for the delay. 31.Consequently, I find the Notice of Motion dated 15.04.2026 without merit. It is hereby dismissed with costs to the Plaintiff/Decree Holder. 32.It is so ordered. DATED, SIGNED AND DELIVERED THIS 29TH DAY OF JUNE 2026.S. N. MUTUKUJUDGE