[2022] KEHC 14623 (KLR)

Mwethaga v Chris M. Gaturu t/a Crima Enterprises & 3 others (Civil Case 1353 of 1998) [2022] KEHC 14623 (KLR) (Commercial and Tax) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14623 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case 1353 of 1998

WA Okwany, J

October 13, 2022

Between

Joseph Kaara Henry Mwethaga

Plaintiff

and

Chris M. Gaturu t/a Crima Enterprises

1st Defendant

Thabiti Finance Company Limited (In Liquidation)

2nd Defendant

Mugunandu Farm Limited

3rd Defendant

Joel Gatimu Kibuchi

4th Defendant

Judgment

Introduction 1. The original plaintiff herein, Joseph Kaara Henry Mwethaga (deceased), filed this case against the defendants through the plaint dated 19th June 1998. The plaint was subsequently amended on 4th July 2002. The original plaintiff died before the conclusion of the case thus necessitating a further amendment of the plaint on 18th November 2016 to enable the administrators, Ad Litem, of the original plaintiff’s estate to take over the prosecution of the case.

2. The plaintiffs seek the following prayers in the further amended plaint:-a)A declaration that the sale of the property, that is to say, All That Piece Of Land Known As L.r. No. Mutira/kaguyu 839 Kirinyagaat the purported public auction of 19th December, 1996, was irregular, a fraud, a façade, a pretence and unlawful and is therefore a nullity, and should be set aside.b)An order that any action by the defendants subsequent to the said sale leading to the transfer of the property to the purported purchaser either the 3rd defendant or any other person at the said public auction be stopped and the property be reinstated to the plaintiff by ordering the Land Registrar to make a rectification of the register by cancelling the transfer effected thereof in favour of the 3rd defendant and anybody getting title from him.c)The 3rd and 4th defendants by themselves, agents, and/or servants do deliver possession of the portion and/or whole part that they are in occupation of the said land and premised to the plaintiff or plaintiff’s order.d)An order that the 1st, 2nd and 3rd defendants do provide the plaintiff with full and particularized statements of accounts and copies of all sale documents and/or the 2nd defendant do credit the plaintiff’s account with them with the proceeds of the disputed sale if the same is upheld by the Honourable Court.e)General and special damages aforesaid and exemplary damaged including damages for trespass and loss of earnings from the tea crops.f)Alternatively to prayer (b) herein above and without prejudice thereto, an award of exemplary, aggravated and general and damages for the net value of the land, loss of anticipated future earnings from the tea crops, for trespass and mesne profits.g)Costs of this suit.

Plaintiff’s case. 3. The plaintiff charged the suit property to the 2nd defendant to secure a loan or overdraft facility but later defaulted in the loan repayments thus precipitating the 2nd defendant’s exercise of its statutory power of sale under Section 74 of the Registered Lands Act Cap 300 Laws of Kenya.

4. The 2nd defendant instructed the 1st defendant to advertise the suit property for sale in an auction that was scheduled to be held outside Grand Oak Hotel at Kerugoya Town on 19th December, 1996 at 11. 30 O’clock.

5. The plaintiff’s case was that the 1st and 2nd defendant colluded with the 3rd and 4th defendants, (together with other unascertained persons), notwithstanding the dispute as to the loan arrears due, unascertained interest rate and other unaccounted proceeds from the sale of a motor vehicle repossessed from the plaintiff and entered into an arrangement to sell/realize the security, in total disregard to the plaintiff’s interest and rights.

6. The plaintiff maintained that the said sale was irregular, fraudulent and conducted in breach of the 1st and 2nd defendant’s duty of care to the plaintiff and was therefore null and void. According to the plaintiff, the registration that was effected in respect of the suit property pursuant to the irregular sale should be cancelled and a suitable rectification made on the register.

7. The Plaintiff listed the particulars of the fraud/fraudulent acts by the defendants as follows: -a)The sale proposed for 19th November, 1996 was done, if at all, which is unknown to the plaintiff, in hiding and the said auctioneers and other agents acting on behalf of the 2nd defendant have concealed the full results and documentation of the sale todate.b)That sale that was purportedly held on 19th December 1996, was not conducted as scheduled and/or not at the advertised venue and time.c)There was no advertisement for the said sale by way of had bills, among other, for a sale at any other place.d)The plaintiff by himself, his agents and employees were denied the opportunity to attend the sale.e)The sale was conducted in an obscure site and irregularly for it to be a valid public auction.f)The 3rd defendant and the other bidders if any could only have attended the false and unlawful sale in collusion with the 1st defendant auctioneer and/or the 2nd defendant’s agent, servant and/or employees.g)Failing and/or refusing to inform the plaintiff that the sale had taken place and who had made the highest bid and purchased the property.h)The 2nd defendant has todate failed to provide the plaintiff with a statement of account, particulars payment made, and further even failed to give the plaintiff his account with them a credit for the purported sale proceeds and hence appropriately reduce his indebtedness with them.i)The 2nd, 3rd and 4th defendants have by themselves, agents and/or servants made false representation to Kerugoya Land Registry by presenting a Land Control Board consent letter purporting it to have been made on 11th March 1997, whereas well knowing that the same was not approved in the meeting of the Land Control Board held on that date. Truly, consent had been refused on that day.

8. The plaintiff averred that his property, estimated to be valued at Kshs 9,000,000, was sold in the irregular and unlawful sale for unbelievably low amount of Kshs. 750,000/- which is a gross under value of the said property.

9. The plaintiff contended that his equity of redemption was thus unlawfully and wrongfully clogged by the defendants and added that as a result of the aforesaid wrongful conduct, the 1st defendant was prosecuted before the Disciplinary Committee of the Auctioneers Licensing Board in Disciplinary Cause No. 17 of 1998 wherein he was found guilty, for among other things: -i.Failure to comply with the provisions of the Auctioneers Act Section 23 (a) and (b) and the Auctioneers Rules 17(4) and 18(3), and further, a finding was made that there was no auction on the 19th December, 1996.

10. The plaintiff faulted the 3rd and 4th defendants for breaching his ownership rights as a registered owner and entitlement to peaceful and quiet enjoyment of the suit land on which his family homestead was built, cash crops, cows, tea crops, indigenous and commercial trees and other properties. He maintained that the 4th defendant’s conduct of forcefully moving into part of his land in the company of people believed to be hired thugs who maliciously damaged his property caused him and his family pain, mental anguish, loss and damage. He listed the particulars of loss and damage to be as follows:-a)Lost earnings from tea crop ( as the weigh records have now been kept and paid in the name of the 3rd and 4th defendant’s agent as one Jane W. Gatimu, among others) for the years 1998 to June 2001 Kshs 940,174. 05. b)Cost of reconstruction of the residential house destroyed kshs 1,250. 000. 00. c)Cost of replacing the destroyed peripheral buildings, fencing wires and posts, water tank and manure deposits, the value of an assortment of cut down trees, 120 fruit trees, form produce crops, grazing grass, building stones, broken and removed 10 wooden doors, 620 iron sheets, 200 litres tank, 2 metal doors, one roomed kitchen house and 1 goat pen and 1 zero grazing unit all valued at Kshs 450,000. 00. d)Legal fees paid to plaintiff’s counsel for filing and prosecuting the complaint before the Auctioneer Licensing Board in Disciplinary Cause No. 17 of 1998. . Kshs 60,000. 00.

11. The plaintiff claimed that the 1st, 2nd and 3rd defendants refused, ignored and/or neglected to avail the Statement of Accounts, documents of sale, Memorandum of Sale and the receipts issued for any payment at the auction and that they failed to do a reconciliation of his accounts.

Plaintiff’s oral evidence 12. PW1, Samuel Gathigo, a former Assistant Chief of Mutira Location where the suit land is situated testified that he was a member of the Land Control Board (LCB) during his tenure as an Assistant Chief. He stated that one Mr. Kibuchi Advocate appeared before the Land Control Board on 11th March 1997 with a view to obtaining consent to transfer of the suit land while alleging that his client had purchased it at a public auction. He explained that the LCB declined to grant the consent citing the absence of the land owner but added that he later learnt that the transfer was approved by the Division Officer (D.O.) in a Special LCB sitting.

13. On cross examination, he reiterated that the LCB consent was signed and stamped by the Division Officer. He also confirmed that the Division Officer is the Chair of the Land Control Board and that the suit land was transferred to the 3rd defendant.

14. PW2, Henry Mwithaga Kaara, the son and one of the Administrators to the estate of the original plaintiff, testified that his deceased father owned suit land where he established their family home. He confirmed that the deceased used the suit land as a collateral to obtain a loan facility from the 2nd defendant to buy a motor vehicle but that the said motor vehicle was repossessed and sold by the 2nd defendant sometime in 1990 after which the suit land was also advertised for sale by public auction.

15. PW2 testified that he later learnt that the suit land had been transferred to the 3rd defendant despite the fact that the auction did not take place as scheduled. He further stated that the Land Control board did not give consent to transfer the suit land. He contended that the irregularity in the sale prompted the plaintiff to lodge a complaint with the then area Provincial Commissioner who in turn instructed the Criminal Investigation Department (CID) to investigate the complaint.

16. PW2 further stated that a complaint was subsequently lodged with the Auctioneers Licensing Board which found that there was no auction and revoked the auctioneers (1st defendant’s license). He testified that the suit land was sold for Kshs 750,000 which was not credited to the original plaintiff’s loan account.

17. PW2 testified that the 4th defendant later served his family with a letter (eviction notice) to vacate the suit land and that his family was thereafter violently evicted from the land without any court order. He stated that the 4th defendant oversaw the violent eviction that was carried out by at least 50 hired goons who destroyed everything on the suit land including the trees, houses and crops in an eviction that was conducted at 5am.

18. PW2 produced the plaintiff’s bundle of documents as P exhibit 1 showing, inter alia, the eviction notice, list of the destroyed property and their cost, proof of earnings and bank statements.

19. On cross examination, PW2 conceded that his late father defaulted in the loan repayment thus precipitating the loan recovery process by the 2nd defendant. He also conceded that a notification of sale of the suit land was sent to the original plaintiff. He further confirmed that the suit land, which was at the time valued at Kshs 960,000, was advertised for sale and that the chargor did not object to the sale. He maintained that even though the sale did not take place as scheduled, he later learnt that the 3rd defendant had purchased the land. He confirmed that this suit was filed 2 years after the sale/auction and that the original plaintiff did not obtain an injunction to stop the sale.

20. PW3, Erastus Mureithi Ndegwa, the plaintiff’s employee as at the time of the time of the eviction testified that he witnessed the eviction and destruction of the plaintiff’s property and crops on the suit land.

Plaintiffs’ submissions 21. At the close of the hearing, the plaintiff’s advocates Mr. C.N. Kihara referred to the disciplinary proceedings, before the Auctioneers Licensing Board and drew the court’s attention to the Board’s decision to revoke the 1st defendant’s license upon finding that no auction was conducted on 19th December 1996 as alleged by the defendants.

22. Counsel also submitted that Land Control Board consent was false and that the purported sale and/or transfer was not approved by Land Control Board. It was further submitted that the plaintiffs are entitled to the orders sought in the further amended plaint dated 18th November 2016.

The Defendant’s case 1stdefendant. 23. The 1st defendant filed his statement of defence dated 14th July 1998 wherein he stated that he auctioned the suit property on 19th December 1996 at Grand Oak Hotel in the presence of the plaintiff and his son. He denied the allegation that he colluded with the other defendants to sell the suit property at an undervalue.

24. The 1st defendant however died during the pendency of the case after which the plaintiffs opted to abandon their claim against him and consequently proceeded with the case against the rest of the defendants.

The 2nd defendant’s case. 25. Through its Defence and Counterclaim dated 14th July 1998, the 2nd defendant averred that the plaintiff’s suit is incompetent, bad in law and an abuse of the court process because of the following reasons:-a)The plaintiff having filed Nairobi HCCC NO. 3328 of 1994 against the 2nd defendant on the same subject matter LR No. Mutira/Kaguyu/839, which is still pending, is barred by the mandatory provisions of Section 6 and 7 of the Civil Procedure Act ( Cap 21) from bringing this suit.b)The plaintiff having filed an application by Chamber Summons dated 14th September 1994 in the said HCCC No. 3328 of 1994 which was determined inter partes on 16th September 1994 and the issues raised therein determined being directly and substantially similar to the ones raised herein the plaintiff’s suit is res judicata and the plaintiff is barred under the doctrine of issue estoppel from bringing the present suit and from raising issues which are substantially the same as the ones raised in the earlier suit and application.c)The plaintiff having filed Nairobi HCCC No. 453 of 1998 against the four(4) defendants herein and application by Chamber Summons therein dated 25th February 1998 on Nairobi Court of Appeal at Nairobi Civil Application No. 120 of 1998 in the same subject matter LR No Mutira/Kaguyu/839 and the issued raised therein are directly and substantially similar to the ones raised is res judicata and the plaintiff is barred under the doctrine of issue estoppel from bringing the present suit and from raising issues which are substantially the same as the ones raised in the earlier suit and application.

26. The 2nd defendant averred that it advanced a loan facility to the plaintiff who defaulted in the loan repayments thereby leaving it with no option but to realize the security in the suit land through public auction.

27. It is the 2nd defendant’s case that the suit property was validly sold to the highest bidder who is currently the registered owner of the said property.

28. The 2nd defendant also filed a Counterclaim against the plaintiffs wherein it stated that:-a)The plaintiff has defaulted in repayment of the loan granted to him by the 2nd defendant in the terms of the letter of offer dated 7th February 1986 and signed by the plaintiff on the same date and has an amount of Kshs 727,302/= outstanding due and owing to the 2nd defendant as at 15th July 1998 after credit is given to the plaintiff for the said sum of Kshs 750,000/- the proceeds of sale of LR No. Mutira/Kaguyu/839 realized on 19th December 1996. The said outstanding balance of Kshs 727,302/- continues to accrue interest daily at the prevailing commercial rates.b)Despite demand made and notice of intention to sue in default given the plaintiff has failed, ignored, refused and/or neglected to fully settle his loan account with the 2nd defendant.

29. The plaintiffs filed a response to the counterclaim wherein they stated that the purported sale of the suit property by public auction was fraudulent, a sham and was conducted in total disregard to the rules governing such sales.

30. The plaintiffs also observed that the 2nd defendant has todate not filed any statement of accounts to reflect the proceeds of the auction.

2nd defendants oral evidence 31. The 2nd defendant presented the evidence of its sole witness, Mr. Micah Lekeuwan Nabori who adopted his witness statement dated 21st January 2014 as his evidence in chief. He also produced the 2nd defendant’s bundle of documents dated 10th documents dated 10th May 2007 as the 2nd defendant’s exhibit.

32. His testimony was that the 2nd defendant advanced a loan facility to the plaintiff to enable him purchase a motor vehicle and that the plaintiff offered the suit property as a security for the said loan. He further testified that the plaintiff defaulted in the loan repayment thereby precipitating the 2nd defendant’s exercise of statutory power of sale. He stated that the suit land was sold at Kshs 750,000 which amount was kept by the 2nd defendant’s lawyers pending the determination of this case. It was the 2nd defendant’s case that the outstanding loan amount currently stands at Kshs 727,000 which it counterclaimed from the plaintiffs.

33. On cross examination, he testified that the plaintiff did not object to the manner in which the sale/auction of the suit land was conducted but only sought to reverse it after it had already taken place. He conceded that he took over the file from one Mr. Rono (deceased) and that he did not directly participate in the events leading to the sale and transfer of the suit land.

34. He confirmed that the 2nd defendant was placed under liquidation. He also conceded that correspondence between the bank and the borrower, prior to the contested sale, show that the terms of the sale had not been met. He testified that the issue of valuation and reserve price can only be addressed by the auctioneer. He further conceded that he did not have a record showing when the full purchase price of the suit land was paid and that the bank had not furnished the plaintiff with a statement of accounts.

35. He however confirmed that the 3rd defendant paid the full purchase price for the suit property, which amount was received and kept by the bank’s lawyers. The 2nd defendant did not file written submissions at the close of the case.

The 3rd and 4th defendant’s case. 36. The 3rd and 4th defendants filed a defence wherein they denied the allegation that they colluded with the 1st and 2nd defendants when purchasing the suit land. They contended that they are bona fide purchasers of the said property with no notice of any dispute concerning the said land.

37. They aver and counterclaim that as a consequence of the plaintiffs’ unconscionable act of instituting suits against them in both the High Court and the Court of Appeal ( being HCCC 453 of 1998 and CA NAI 120 of 1998) which suits were withdrawn and dismissed, they incurred costs and losses in terms of legal fees amounting to Kshs 114,547.

38. In response to the counterclaim, the plaintiffs averred that the defendants’ claim is a cry wolf strategy intended to divert the court’s attention from the plaintiffs claim for loss and damage arising out of the 3rd and 4th defendants’ illegal acts and eviction from the suit property.

39. At the hearing of the case, the 3rd and 4th defendants presented the testimony of Mr. Philip Kinusu (DW2), the 3rd defendant’s director who adopted his witness statement as his evidence in chief and produced the defendant’s list of documents as exhibits.

40. On cross examination he testified that the 3rd defendant is a family owned company registered after the auction of the suit property wherein his wife and parents-in-law are shareholders. He stated that the 3rd defendant instructed its lawyer to purchase the land and that the entire transaction was handled by their lawyers. He further stated that he did not know how the plaintiff was evicted from the suit land.

41. On cross examination, he testified that he did not attend the Land Control Board and reiterated that the entire process of the land transfer was done by the 3rd defendant’s lawyers. He added that the 2nd defendant had not complained of non-payment of the purchase price.

42. At the close of the hearing, the 3rd and 4th defendants’ advocate, Mr. Oyatsi, submitted that his clients were not parties to the loan agreement and were therefore not involved in the performance of the conditions of the charge. He explained that the 3rd and 4th defendants’ involvement at the auction was in response to the newspaper advertisement of the impending sale of the suit property in exercise of the 2nd defendant’s statutory power of sale. Counsel submitted that the 3rd defendant is an innocent purchaser of the suit land and that the issue of fraud does not arise.

Analysis and determination. 43. I have considered the pleadings filed herein, the oral and documentary evidence presented by the parties, the submissions and the authorities that were cited.

44. The issues for determination are as follows:-a)Whether the plaintiffs have made out a case for the granting of the orders sought in the further amended plaint.b)Whether the defendants are entitled to the orders sought in the counter- claim.Sale of the suit property at the public auction

45. The gist of the plaintiffs’ case was that the alleged sale of the suit property by public auction of 19th December 1996 was irregular, unlawful, a fraud, a façade, a nullity. They therefore sought orders to the set aside the sale and the subsequent transfer of the suit property to the 3rd defendant.

46. The plaintiffs further sought orders for the reinstatement of ownership of the suit property to them and for an order directing the 3rd and 4th defendants to deliver possession of the said parcel of land to them.

47. They also sought orders to be supplied with the full particulars of their statement of accounts and copies of the sale documents and further, that their loan account be credited with the sale proceedings.

48. The plaintiffs also sought general, special and exemplary damages for trespass and loss of earning for the tea crops. I will now turn to consider each of the prayers sought by the plaintiffs.

49. On whether the sale/auction of the suit property was irregular, unlawful and/or a nullity, I find that it was not disputed that the plaintiff obtained a loan facility from the 2nd defendant and that he offered the suit land as a security for the said loan. It was further not disputed that the plaintiff defaulted in the loan repayments thus prompting the 2nd defendant to exercise its statutory power of sale by instructing the 1st defendant to auction the suit property.

50. The plaintiffs alleged that the 1st defendant conducted the auction in a fraudulent, irregular and unlawful manner. In this regard, the plaintiff testified that he lodged a complaint against the Auctioneer before Auctioneers Licensing Board (the Board) which, after taking the evidence of the all the parties including the purchaser’s witness Mr. Phillip Kundu Kinusu, found the Auctioneer to have been at fault. For this argument, the plaintiffs produced the proceedings and verdict of the said Board rendered on 28th May 1998 as exhibit No. 24. I have perused the said proceedings of the Board and I note that it made the following findings:-a)There was no auction on the 19th December, 1996. b)The Auctioneer has admitted that he: Back-dated the Memorandum of Sale,

Produced two memorandum of sale on request of the purchaser’s advocate.c)He accepted the highest bid of an agent whose principle was undisclosed.d)He failed to receive 25% at the fall of the hammer.e)He caused an agreement of sale to be signed in his absence.

Decision The Auctioneer did not comply with the provisions of the Law – Auctioneers Act Section 23(a) & (b) and Auctioneers Rules 17(4) & 18(3). Licence Revoked 51. From the above extract of the Board’s findings, it is crystal clear that the 1st defendant did not carry out the auction in line with the dictates of the law governing sale by public auction. No material was placed before this court to show that the Board’s decision was overturned or set aside on an appeal even though the Auctioneer alleged that he had appealed against the said decision. In essence, the Board’s decision still stands and cannot be overlooked by this court in determining the validity of the auction and subsequent transfer of title to the suit land to the purchaser.

52. The question which arises is whether, in the circumstances of this case, the 3rd and 4th defendants can be said to have been innocent purchasers for value whose title to the suit land is protected and cannot be impeached.

53. My finding is that while the 2nd defendant was within its rights to exercise its statutory power of sale following the plaintiff’s default in the loan repayments, the 1st defendant was, on his part, required to stick to the law and rules governing sale by public auction. I however find that the 2nd defendant cannot be held responsible for the failures, by the 1st defendant, to adhere to the law in conducting the auction.

54. The next question that this court has to grapple with is whether the 3rd and 4th defendants colluded with the 1st defendant in the conducting of the irregular auction.

55. The 3rd defendant’s case was that it responded to the advertisement made by the 1st and 2nd defendants in respect to the intended auction of the the suit property. The 3rd defendant’s witness testified that it purchased the suit property at an auction through their lawyers who paid the full purchase price after which ownership of the said property was transferred to the 3rd defendant’s name. The 2nd defendant confirmed that its lawyers received the full purchase price but that the money remained in the custody of the said lawyer and was not credited into the plaintiff’s loan account.

56. Having found that the Board’s verdict on the manner in which in which the auction was carried out has not been overturned, I am unable to find that the 3rd defendant had acquired a good title which needs to be protected. It is trite that a title can only be acquired through a lawful process which was not the position in the present case. (See Maina Wanjigi & Another v Bank of Africa Kenya Ltd. & 2 Others [2015] eKLR)

57. This court is alive to and agrees with the provisions of Section 26 of the Auctioneers Act which stipulates that any party aggrieved by an auction can only recover damages against the auctioneer for the wrongful acts committed by the auctioneer at the auction where an auction is regularly conducted. In the present case, however, I have already noted that the Board charged with looking into the conduct of auctioneer determined that there was no auction. Having found that there was no auction, it logically follows that Section 26 is not applicable in this case.

58. My further finding is that even though the plaintiff alleged that there was collusion between the 1st defendant and the purchasers during the sale, no material was placed before the court to prove such collusion or fraud. The suit property was clearly up for sale following the loan default and the 3rd defendant cannot be blamed for purchasing the said property.

59. I also find is that in the face of the uncontroverted evidence that the plaintiff had defaulted in the loan repayments, the plaintiff’s prayer for the cancellation of the sale and the reinstatement of the suit land to the plaintiffs’ names, would be untenable and akin to rewarding the plaintiffs’ default.

60. I find that the infractions and transgressions that the plaintiffs complained about over the conduct of the auction are claims that can only be addressed and settled by the auctioneer. It is however noteworthy that the plaintiffs withdrew their claim against the auctioneer following the said auctioneer’s demise. I note at paragraph 5. 2 of the plaintiff written submissions, the plaintiff indicated that it had abandoned its claims against the 1st defendant (auctioneer).

61. In the circumstances of this case, I am unable to find that the rest of the defendants can be held responsible for the manner in which the 1st defendant carried out the auction.

62. Turning to the prayer for the particularized statement of accounts, I find that the plaintiffs made out a case for the production of the said statements by the 2nd defendant. I note that the 2nd defendant conceded that it did not furnish the plaintiff with the loan statements even after the sale of the suit land. Furthermore, the 2nd defendant did not explain, to the satisfaction of this court, the reasons why its lawyer’s withheld the proceeds of the sale of the suit property in their clients’ account instead of crediting the same to the plaintiff’s loan account. It is therefore not in doubt that, as the custodian of the said statements, the 2nd defendant is under a duty to supply the same to the plaintiffs.

Forceful eviction. 63. The plaintiffs claimed that they were forcefully evicted from the suit land by goons hired by the 4th defendant who descended on their home at the crack of dawn and mercilessly destroyed everything on site including their family house and other property valued at Kshs 1. 7 million. The plaintiff also claimed general and special damages for trespass and loss of earning from the crops. I have considered the moving and compelling testimony presented by PW2 and PW3 over the manner in which the eviction was carried out together with the documentary evidence establishing the extent of the loss. The 3rd defendant’s witness stated that he was not aware of how the eviction was conducted.

64. Having found that the sale by public auction was a nullity, it automatically follows that there was no basis for the plaintiff’s forceful eviction. I find that while it is evident that the plaintiffs proved, to the required standards that their eviction resulted in loss of property for which they are entitled to compensation, liability for such compensation falls on the laps of the auctioneer who did a shoddy job and who this court has already found to have contravened the law governing public auctions. The loss that the plaintiff or any other party suffered or will incur as a result of the botched auction should ideally be met by the auctioneer. The plaintiff’s loss of Kshs. 1. 7 Million should be borne by the auctioneer, however, as I have already noted in this ruling, the plaintiff withdrew his case against the auctioneer and it is therefore not possible to make any orders against him in this matter.

Counter claim 65. The 2nd defendant made counterclaim for kshs 727,302 being balance of the loan amount as at 15th July 1998. The 2nd defendant did not however explain, through bank statements or any other documentary evidence, how it arrived at the said loan balance considering that it had already sold the suit property that was security for the loan.

66. The 2nd defendant did not also explain why the amount recovered from the impugned auction was not credited into the plaintiff’s loan account more than 20 years after the auction. For the above reasons, I am not persuaded that the 2nd defendant has made out a case for the granting of the prayers sought in the counterclaim.

3rd and 4th defendants’ counterclaim 67. The 3rd and 4th defendants made a counterclaim for kshs 114,547 being legal costs incurred in the High Court and Court of Appeal in other cases filed in 1998.

68. I find that legal costs/fees arising from the said cases ought to have been awarded and/or recovered in the said proceedings and not in these proceedings. I therefore decline to grant prayers sought in the 3rd and 4th defendant’s counterclaim.

Disposition 69. My above findings do not take away the 2nd defendant’s right to realize its security which is unfettered following the plaintiff’s default in loan repayment. It is clear to this court that the current proceedings were precipitated by the irregular and unlawful actions of the 1st defendant in conducting the public auction. This is to say that had the auctioneer done his job in the correct manner, the 2nd defendant would have realized its security and the 3rd and 4th defendants would have acquired a good title to the suit property.

70. Before I conclude this judgment, I wish to state that this court notes, with grave concern, that this case remained pending and unheard, on its merits for over two decades before the hearing commenced on 5th February 2019. Going by the adage that justice delayed is justice denied, it goes without saying that, owing to the lapse of time, it is most unlikely that the final orders that this court will grant will truly offer redress to the parties herein. It is instructive to note that both the original plaintiff and the 1st defendant died before the hearing of the case.

71. Doing the best that I can, in the circumstances of this case, and having regard to the findings and observations that I have made in this judgment, I find that the plaintiff herein proved his case on a balance of probabilities against the 1st and the 2nd defendants only. Consequently, I hereby make the following final orders: -a)A declaration is hereby issued that the public auction staged for the sale of the suit property on 19th* December 1996 and all other actions arising from the said sale are a nullity and are hereby set aside.b)The 2nd Defendant is at liberty to advertise afresh the sale by Public Auction of the suit property, immediately, without giving a fresh statutory notice.c)The 3rd Defendant shall be refunded all the monies paid by it to the 2nd Defendant pursuant to the aforesaid alleged public auction staged on 19th December 1996 together with interest at Court rates from the date of such payment.d)An order that the 1st, 2nd and 3rd defendants do provide the plaintiff with full and particularized statements of accounts.e)Costs of the suit to the plaintiff as against the 1st and 2nd defendants only.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF OCTOBER2022W. A. OKWANYJUDGEIn the presence of: -Ms Wangare for Kihara for plaintiff.No appearance for defendant.Court Assistant- Sylvia