[2022] KEHC 10124 (KLR)

Nyariki v Mogusii Farmers Group Company Limited; New Oshwal Distributors Limited (Applicant) (Civil Case 2 of 2019) [2022] KEHC 10124 (KLR) (6 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10124 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Case 2 of 2019

FA Ochieng, J

July 6, 2022

Between

Wesley Mokua Nyariki

Plaintiff

and

Mogusii Farmers Group Company Limited

Defendant

and

New Oshwal Distributors Limited

Applicant

Ruling

1. The application datedJanuary 11, 2022filed by New Oshwal Distributors Limited. The said Applicant told the court that on November 29, 2019, it purchased a parcel of land LR No. Kisii Municipality/block 11/79, at a Public Auction.

2. It was the Applicant’s prayer that the said sale be made absolute. It was the Applicant’s further request that upon the issuance of an order making the auction sale complete, a Certificate of Sale be issued in its favour.

3. Thirdly, the Applicant asked the court to order the Respondent, Mogusii Farmers Group Company Limited, to deliver up vacant possession of the suit property, to the Applicant.

4. Finally, the Applicant asked the court to give authority to the Deputy Registrar of this court, to execute all the requisite documents for the transfer of the suit property to the Applicant.

5. The application was premised upon a judgement which was entered against the Defendant/Respondent on May 15, 2019. The application was supported by the affidavit of Prinalkumar Bhagwanji Chanderia, who is a Director of the Applicant.

6. It was the Applicant’s case that they had paid the full purchase price of Kshs. 34,000,000/= for the parcel of land which was then owned by the Defendant.

7. It was the Applicant’s further case that the Auctioneer who conducted the public auction, Ms. Hegeons Auctioneers, had issued a Certificate of Sale. A copy of the said certificate was exhibited by the Applicant.

8. Following the completion of the sale transaction, the Applicant submitted that the Respondent was divested of all proprietory interests in the suit property.

9. It was for that reason that the Applicant was now desirous of acquiring the transfer of the land to its name, so that it can be the registered proprietor.

10. The Defendant responded by a replying affidavit which was sworn by Erastus Nyamwaya, who was the Defendant’s manager.

11. The Defendant indicated that the first time it became aware of the default judgement was when the suit property was advertised for public auction.

12. Immediately the Defendant became aware of the default judgement, it lodged an application for stay of execution pending the hearing of the application to set aside the judgement.

13. Although the Plaintiff, Wesley Mokua Nyariki, was served with the application, he proceeded with the public auction.

14. The Defendant confirmed to this court that it failed to secure an order to stop the public auction. The Defendant said that on the scheduled date for the auction, it sent its manager to the venue where the sale was to be conducted. However, according to the manager, no public auction was conducted.

15. By a further affidavit, the Applicant gave particulars of how the auction was conducted.

16. This court is not able to make a determination on the issue about the auction, as the two parties have given completely divergent sworn affidavits, and I have no basis upon which I can choose to believe one against the other.

17. The Defendant expressed surprise that the Applicant had slept on his rights for over 2 ½ years, after it had allegedly paid a whooping Kshs. 34,000,000/=.

18. That is a legitimate observation by the Defendant.

19. However, as the Applicant had indicated, it was even more surprising that the Defendant did not take any steps to challenge the sale until now.

20. First, it is clear that when the Defendant failed to get any court order to stop the auction, the Plaintiff was entitled to have the said auction proceed. The fact that the Defendant had some pending application, through which it hoped to put on hold the auction, is not a basis for faulting the Plaintiff, for going ahead with the auction.

21. Secondly, the money which was paid by the Applicant is said to have been used to pay-off the debt which the Defendant owed prior to the auction. Therefore, if the Defendant had been credited with the proceeds of the sale, it had received the benefit from the money paid by the Applicant.

22. Having executed the decree, the Plaintiff had no further interest in the case. As far as he was concerned, the case had been concluded. It was therefore the Purchaser who had an interest in securing title to the land which it had purchased to the auction. In effect, the Applicant had the requisite locus standi to institute the current application.

23. The Applicant had been declared the purchaser, and therefore, it was entitled, pursuant to Order 22 Rule 79 of the Civil Procedure Rules, to ask the court to grant a: -“……certificate specifying the property sold and the name of the person who at the time of sale is declared the purchaser, and such certificate shall bear the date and the day on which the sale became absolute.”

24. In this case, the Applicant has said that the property was in the possession of the Defendant.

25. Pursuant to Order 22 Rule 80 of the Civil Procedure Rules, the purchaser was entitled to move the court for an order to compel the Defendant to deliver up the property to the purchaser.

26. It is instructive that under Order 22 Rule 81 (1) of the Civil Procedure Rules:-“Where no application is made under rule 78, rule 79 or rule 80, or where such application is made and is allowed, the court shall make an order confirming the sale, and thereupon the sale shall become absolute in so far as the interest of the judgement-debtor in the property sold is concerned.”

27. In this case, the Defendant was the judgement-debtor. It has not made any application to set aside the sale at which the subject matter was sold-off. Therefore, this court has no basis for declining the issuance of an order that would make the sale absolute.

28. And by dint of Section 48 of the Civil Procedure Act: -“Where immovable property is sold in execution of a decree and the sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.”

29. As the sale was conducted at a time when the decree was in force; and because the Defendant failed to obtain a Court Order to stop the sale, I find that the sale herein became absolute at the time when the auction was conducted.

30. Therefore, actions which took place long after the sale had become absolute cannot, with respect, undo the sale.

31. My said finding is emboldened by the Ruling of the Court of Appeal in Wesley Mokua Nyariki v Mogusii Farmers Group Limited, Civil Application No. 32 of 2020, in which the court stated as follows: -“From the circumstances of this case and the motion dated November 14, 2019, seeking to set aside the interlocutory judgement entered herein on May 17, 2019, having been allowed, it is our considered opinion that there is nothing to stay and the intended appeal will not be rendered nugatory as the execution process has already been completed; the respondent’s property having been sold by public auction on November 29, 2019 and as such, the instant application has been overtaken by events.”

32. In the event, I order that the sale by public auction herein be and is hereby made absolute.

33. I further order that a Certificate of Sale of the Land Parcel No. LR Kisii Municipality/block 11/79 be issued in favour of the Applicant.

34. The Learned Deputy Registrar of this court is mandated to execute all the documents requisite for the transfer of the said parcel of land to the Applicant.

35. Finally, I order that the Defendant shall, within the next seven (7) days, deliver up vacant possession of the said parcel of land, to the Applicant.

36. Costs of the application dated January 11, 2022 are awarded to the Applicant, and shall be paid by the Defendant.

DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 6TH DAY OF JULY 2022. FRED A. OCHIENGJUDGE