[2002] KEHC 238 (KLR)
The court found that the respondent did not take any objection proceedings as required under Order 21 rule 53, nor did he apply to set aside the sale under the relevant provisions of the Civil Procedure Rules. The objections raised regarding ownership and lack of notification were not supported by any formal...
Source-derived case information.
- Citation
- [2002] KEHC 238 (KLR)
- Parties
- Applicant: Onesmus Ndonga Gichuhi; Respondent: Justine Sanga Barawa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 48 of ??
- Procedural Posture
- Miscellaneous Application / Ruling on Originating Summons for Vesting Order
- Outcome
- application allowed
- Legal Topics
- Execution of Decrees, Public Auction, Vesting Orders, Objection Proceedings, Sale of Property Without Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Onesmus Ndonga Gichuhi
Applicant
Justine Sanga Barawa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Originating Summons for Vesting Order
Legal Issues
- 1 Whether the applicant is entitled to a vesting order for a house purchased at public auction in execution of a decree.
- 2 Whether the respondent's objections regarding ownership and lack of notification are valid grounds to set aside the sale.
Ratio Decidendi
The court found that the respondent did not take any objection proceedings as required under Order 21 rule 53, nor did he apply to set aside the sale under the relevant provisions of the Civil Procedure Rules. The objections raised regarding ownership and lack of notification were not supported by any formal application or legal procedure. As such, the auction sale was confirmed, and the applicant was entitled to the vesting order sought. The absence of any challenge in the prescribed manner rendered the sale absolute and the applicant's claim valid.
Court Disposition
application allowed
Orders
- The application for vesting order is allowed.
- Orders sought by the applicant are granted.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL APPLICATION 48 OF 2000
IN THE MATTER OF : SALE OF PUBLIC AUCTION OF A PERMANENT HOUSE WITHOUT LAND BETWEEN
ONESMUS NDONGA GICHUHI …………………………………… APPLICANT
AND
JUSTINE SANGA BARAWA …………………………………… RESPONDENT
RULING
The applicant under an Originating Summons seeks vesting order in respect of a house without land purchased by him in a public auction in execution of a decree in HCC NO. 45/1996. Affidavit in support shows that the auction was conducted on 3. 10. 96 and that the applicant paid shs. 250. 000/-. Court did issue a certificate of sale on 27. 1.2000. The application is opposed by the decree debtor Justine Sand Barawa who states that the property attached was not his and he is not aware of the payment of shs. 250. 000/- or that any auction took place as he was never notified.
In his supplementary affidavit sworn he discloses that the suit premises is owned by some other third persons. It is to be noted here that anyone claiming an interest in property which is attached under a decree which does not bind him has a right to take objection proceedings under Order 21 rule 53. No such proceedings has been taken in the matter. It is also to be noted that to set aside a sale by auction in execution of decree one must comply with:
(a) Order 21 rule 78 (payment of deposit and money on public notification as the amount of decree).
b) Order 21 rule 79 (where he alleges material irregularity or fraud in publishing or conduction the sale and the applicant has sustained substantial injury by such fraud or irregularity).
c) By purchaser under Order 21 rule 80.
Where no such application is made, as in this case the auction sale shall be confirmed by court and thereupon the sale shall become absolute.
I therefore find no merit in the objections raised by decree debtor and allow the application and grant orders sought with costs of this suit to the applicant.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Read on the 17th June, 2002 in presence of Mr. Mwangi Njoroge.
J. KHAMINWA
COMMISSIOENR OF ASSIZE