https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12860

Rotich v Arap Bii (Civil Suit E006 of 2025) [2026] KEHC 12860 (KLR) (13 August 2026) (Judgment) Neutral citation: [2026] KEHC 12860 (KLR) Republic of Kenya In the High Court at Kericho Civil Suit E006 of 2025 JK Sergon, J August 13, 2026 Between Peter Kipyegon Rotich Plaintiff and Elijah Kipng’Eno Arap Bii Defendant Judgment 1.Peter Kipyegon Rotich, the plaintiff herein, filed an action against Elijah Kipng’eno Arap Bii, the Defendant herein, vide the plaint dated 6th November, 2003. In the aforesaid plaint the plaintiff sought for judgment against the defendant as follows inter alia:a.An order for vacant possession of L.R No. Kericho/ Kabianga/1824b.Mesne profitsc.Interest on Mesne profitsd.Costs 2.The defendant entered appearance, filed his defence and counterclaim dated 16th January, 2004 joining Kenya Commercial Bank (hereinafter referred to as the Bank) as the 1st defendant to the counter-claim. 3.In the counter-claim, the defendant sought for judgment against the plaintiff (2nd defendant in the counter-claim) and Kenya Commercial Bank (1st Defendant in the counter claim) inter alia as follows:a.A declaration that the sale of L.R No. Kericho/ Kabianga/1824 to the 2nd defendant is void abinitiob.General damagesc.Costs of the suit 4.The plaintiff filed his reply to defence and counter-claim. On its part the Bank also filed a defence to the counter-claim. 5.When the suit came up for hearing, the plaintiff testified and summoned two witnesses to testify in support of his case. The defendants on their part each summoned two witnesses to testify in their defence. The Plaintiff’s Case 6.Peter Kipyegon Rotich (PW1) adopted his written witness statements dated 6th December, 2023 as his evidence in chief. PW1 stated that he read an advertisement posted by M/s Solai Agencies in Kenya Times Newspaper of 7th November, 2002 of sale by public auction of the parcel of land known as L. R No. Kericho/Kabianga/1824 scheduled for 20th November, 2002. 7.He produced in evidence a copy of the newspaper advertisement as an exhibit. PW1 said he attended the public auction conducted by M/s Solai Agencies at Kericho on 20th November, 2002 and that he was declared the highest bidder beating five other bidders on the suit property. 8.He produced in evidence a copy of the certificate of sale of land dated 20th November, 2002. PW1 further stated that he bid for Ksh 1,310,000/=. He said he paid a deposit of Ksh 327,500/= being 20% of the purchase price. The plaintiff stated that he settled the purchase price by instalments as follows:i.20.11.2002 Kshs 327,500/=ii.20.11.2002 Kshs 202,500/=iii.10.12.2002 Kshs 300,000/=iv.17.12.2002 Kshs 120,000/=v.23.12.2002 Kshs 250,000/=vi.24.12.2002 Kshs 50,000/=vii.24.12.2002 Kshs 60,000/=Total Kshs 1,310,000 9.The plaintiff further averred that Kenya Commercial Bank obtained the necessary Land Control Board consent for the transfer dated 12th May, 2003 which he produced in evidence as an exhibit. He said that the property had been valued at Ksh 2,510,000/= and that the forced sale value was fixed at Ksh 1,280,000/=. 10.The plaintiff also stated that upon settling the purchase price in full the Bank transferred the aforesaid land to him free from encumbrances and that upon transfer he received documents to wit the title deed in his name and the application for consent and consent from the Land Control Board. PW1 produced the aforesaid documents as exhibits in evidence. 11.PW1 said that in the month of August, 2003, he took possession of the land and started fencing the same but the defendant hired violent farm-hands who attacked his workers and destroyed the fencing posts, wires, tree seedlings, nails and a tool box among other valuables. 12.The plaintiff stated that by virtue of his registration as a proprietor for value for consideration, he is entitled to hold the land free from claims and interests of the Defendant or his agents, which claims and interests were extinguished by the fall of the harmer at the public auction held on 20.11.2002. 13.The plaintiff further stated that the defendant’s remedy would lie in damages as against the selling bank or the auctioneer and therefore the defendant’s refusal to vacate the land is without merit. PW1 averred that the allegations of fraud contained in the counter-claim are baseless, scandalous and are intended to embarrass him. PW1 stated that he has been unable to realize the fruits of his investments in the suit land for over 24 years. 14.He prayed for an order for vacant possession, mesne profits from the time the suit land was transferred to him to the date of judgment. 15.The second witness who testified in support of the plaintiff’s case is Harrison Kirui (PW2) a holder of a masters degree in Rural Economics, told this court that he has worked in the Tea Industry for over 30 years. PW2 produced a report he prepared dated 17th January, 2024 as an exhibit in evidence. In the aforesaid report, PW2 gave estimates on income per year on the tea farm established on L. R. No. Kericho/Kabianga/1824. 16.He stated that the total income per acre per year on average is Ksh 58,400/=. PW1 further indicated in his report that a sum of Ksh 525,600/= would be the annual income from 9 acres which amount would be Ksh 11,037,600/= in 21 years. PW1 said that he used his experience to prepare the report but admitted that he is not licensed to prepare such a report. 17.The third and final witness who testified in support of the plaintiff’s case is Lawrence Sang Kipngetich (PW3). He told this court that he is a valuer and a holder of a masters degree in valuation. PW3 confirmed that he prepared the valuation report dated November, 2023 in respect of L.R No. Kericho/ Kabianga/1824 which he produced as an exhibit in evidence. 18.In the aforesaid valuation report PW3 put the current value of suit land at Ksh 24,300,000/=. PW3 said that the land is entirely covered by tea though there are temporary developments. Defence Case 19.Elijah Kipng’eno Bii (DW1) the Defendant in the main suit testified and summoned one witness namely: Fancy Jeruto Letyo (DW2) to testify in support of his case. 20.DW1 said that he was employed as a graduate trainee by Kenya Commercial Bank in 1973 and that he rose through the ranks until he became the General Manager of the bank. DW1 stated that he served as the General Manager for five (5) years from 1993 until 1998 when he was maliciously, unlawfully, fraudulently and criminally replaced as the General Manager of KCB by third parties. 21.The Defendant alleged that the third Party Margaret Chemengich who was then the Permanent Secretary Ministry, of Finance, with a group of collaborators removed him without lawful authority for their selfish interest. The Defendant however admitted, that in the years 1977,1978 and 1991 he charged the parcel of land known as L.R. Kericho/Kabianga/ 1824 and the developments therein to Kenya Commercial Bank (1st Defendant in the counter-claim) for an advance of credit facilities with itself. 22.DW1 further stated that on or about October, 2003 the Bank Communicated to him that it had sold the parcel of land, to L. R No. Kericho/Kabianga/1824. It is his evidence that if the sale ever took place as purported by the Bank, then the same was done fraudulently in collusion with Peter Kipyegon Rotich, the plaintiff in the main suit in breach of the laid down provisions of law. DW1 listed the particulars of fraud by the defendants (in the counter claim) as follows: The bank (1st defendant) sold the suit property in violation of the credit contract between itself and him by relying on a resolution passed by the bank’s board. The Bank sold the suit property for an inordinately low and fraudulent price of Ksh 1.34 million whereas the market value ought to have been about Ksh 7 million. The Bank and the plaintiff (main suit) colluded to fraudulently transfer the property to the plaintiff. The defendant (main suit) was not served with the mandatory statutory notice of sale by the bank. The plaintiff (2nd defendant in the counter-claim) and the bank (1st defendant in the counter-claim) colluded to fraudulently and deceptively obtain land control board consent for the transfer of the suit land to the plaintiff. 23.DW1 further stated that the bank maliciously stopped and frustrated the repayment of his credit facilities on the basis of directives and decisions of third parties. He also stated that his monthly salary was stopped with effect from 21st March, 1998 on the basis of fraud perpetrated by its employees. 24.He further averred that his agreed credit terms were withdrawn with effect from 21st March 1998 on the basis of an illegal 3rd party directive thus applying the punitive interest rates of over 20% replacing his entitled rate of 3% and 8% on the same basis. 25.The Defendant stated that the Bank had no lawful authority to sell the suit land by public auction as it could not exercise its statutory power of sale the way it did. He further stated that the bank and the plaintiff colluded to get a fraudulent Land Control Board letter of consent for the transfer of ownership of L.R. No. Kericho/Kabianga/1824 from him to the plaintiff. Fancy Jeruto Letyo (DW2) appeared and testified in support of the Defendant’s case. 26.She produced in evidence as an exhibit a valuation report she prepared over L.R No. Kericho/Kabianga/1824 on the instructions of Elijah Kipng’eno Arap Bill (DW1). 27.DW2 stated that based on the market data, assumption and analysis, she gave the market value of the suit property between the years 2000 and 2020 as follows:Year -Market value2000- Ksh 2,700,000/=2002- Ksh 2,800,000/=2010 -Ksh 4,900,000/=2020 -Ksh 29,300,333/= 28.DW2 further averred that the reserve price under Section 97 of the Land Act, 2012 is capped at 75% of the Market value and that a chargee is required to act in good faith. In her report DW2 said that she looked at the developments on the land. In her report DW2 admitted that she did not indicate the forced sale value because the client merely wanted to know the market value. 29.The Bank (1st defendant in the counter claim) summoned two witnesses to testify in support of its case. Nelly Musau (DW3), the bank’s credit manager, Moi Avenue, Branch, Nairobi confirmed in her evidence that Elijah Kipng’eno Arap Bill, the defendant indeed borrowed from the bank in 1977, 1988 and 1991 the following sums of Ksh 70,000/=, Ksh 200,000/= and Kshs 230,000/= respectively with legal charges over the suit property. 30.DW3 told this court that the defendant was lawfully dismissed from the employment of the bank as the General Manager in April, 1998 by the Bank’s Board of Directors. She further stated the defendant defaulted in the repayments of the loan facility thus the Bank’s statutory power of sale arose. 31.She also said that the defendant failed to service the outstanding loan despite being served with a demand notice thus prompting the bank to exercise its statutory power of sale. DW3 pointed out that as of 25th July, 2001 the total outstanding aggregate sum was Ksh 187,855,378/=. 32.She further stated that the Bank adhered to the requirements and processes set by law including obtaining the Land Control Board consent. DW3 stated that the Bank instructed M/s Solai Agencies to auction L.R. No. Kericho/Kabianga/1824. 33.It is her evidence further that the auctioneers issued notification of sale and advertised the suit property for sale by public auction on 20/11/2002 vide Kenya Times Newspaper of 7.11.2002. DW3 confirmed in her evidence that Peter Kipyegon Rotich (plaintiff) was the highest bidder in the auction. DW3 also confirmed that the plaintiff required deposit and the balance of the purchase price totaling Ksh 1,310,000/= which amount is above the reserve price of Ksh 1,280,000/=. 34.DW3 further corroborated the evidence of the plaintiff (PW1) that after payment in full and obtaining the Land Control Board consent to transfer, the transfer by chargee in exercise of its statutory power of sale, was registered and a certificate of title was issued to the plaintiff. DW3 also refuted the claim that the bank was party to any fraudulent conspiracy with the plaintiff to defraud the defendant, Elijah Kipng’eno Arap Bii. 35.DW3 stated that she is aware that the purchase price was paid after the lapse of 30 days. It is her evidence that the parties mutually extended the completion period. The second witness summoned by the Bank is Gerald Kiptoo Ruto (DW4) who told this court that he is a registered valuer working for Highlands Valuers Ltd. DW4 produced a valuation report dated 13th July, 2001 on behalf of Highlands Valuers as an exhibit in evidence. DW4 stated that in 2001, there was no law capping the forced sale value. 36.At the close of evidence, parties were invited to file written submissions which they did. The parties also individually identified the issues for determination. This court having considered the evidence and the rival submissions is of the view that the following two main issues arose for determination:(i)Whether the defendant has proved fraud as particularized under paragraph11 of the defence and counter claim and whether prayers (a), (b) and (c) in terms of the counter-claim should be granted.(ii)Whether the plaintiff is entitled to the prayers for vacant possession of the suit property, mesne profits, interest and costs in the plaint. 37.On the first issue as to whether the defendant has proved fraud as particularized in the defence and counter-claim and whether prayers (a), (b) and (c) of the counter-claim should be granted, it is the submission of the defendant that he has largely proved the allegations of fraud as particularized in paragraph 11 of the defence and counter-claim. 38.The defendant is of the averment that he has established that the bank (1st defendant in the counter-claim) never served him with the statutory notice of the sale and or notification of sale. The defendant denied receiving the letter dated 15th June, 1999 addressed to the defendant’s “P. O. Box 22333 Nairobi”. It is the defendant’s submissions that the bank did not controvert the defendant’s assertion of non-receipt of the letter as it never produced a certificate of posting to rebut the defendant’s claim. 39.The defendant further pointed out that the letter from the bank dated 3rd June, 1999 was sent to a wrong address “P. O. Box 48400 c/o Mr. S.K. Towett” which address did not belong to the defendant. The Defendant also pointed out that the letter dated 10th November, 1999 and another dated 25th July, 2001 were addressed to the defendant by the Bank’s advocates through his Box number 22333, Nairobi. 40.The defendant denied receiving the aforesaid letters and according to the defendant, the bank did not rebut the defendant’s assertion since the bank did not produce a certificate of posting. The defendant further denied receiving the notification of sale by M/s Solai Agencies Auctioneers and that the Bank failed to produce a certificate of posting. 41.It is the final submission of the defendant that no statutory notice and or notification of sale was served on the defendant. The defendant further submitted that the failure to serve the statutory notice is a clear breach of the provisions of section 74(1) of the Registered Land Act, Cap 300 Laws of Kenya (now repealed) and that the remedy is the nullification of the auction sale undertaken therein as the same is in law void abinitio. 42.In response to the defendant’s submission, the Bank is categorical that it proved during the trial and in its documentary evidence that the defendant was served with the requisite statutory notices through the original and registered post to his confirmed postal address “P. O. Box 22333, Nairobi”. 43.The Bank further pointed out that it duly served on an adult member of the family of the defendant which is deemed in law to be proper and effective service. The plaintiff made submissions similar to those made by the Bank. It is the submission of the plaintiff that the defendant’s claim that he was never served with the statutory notice is untrue. 44.It is trite law that under section 74(1) of the Registered Land Act (now repealed) that a duty is imposed on the chargee to serve a notice on the chargor before exercising its statutory power of sale. It is apparent from the evidence presented by the Bank that the Bank sent several notices and reminders. The Bank presented evidence showing that on 10th November, 1999, it served a statutory notice of even date upon the defendant at his acknowledged address “P. O. Box 22333, Nairobi” by registered post and a copy of the said notice was forwarded by ordinary post. 45.This court is satisfied that the Defendant was duly served. In fact, the Bank produced in evidence as an exhibit the certificate of posting. “A Registered Post Article”. It is also clear from the defendant’s evidence that he acknowledged that the postal address “P. O. Box 22333, Nairobi” was his. 46.In the letter dated 10th November, 1999, the Bank notified the defendant that his properties including the suit property namely L. R. No. Kericho/Kabianga/1824 would be sold if he did not remit the full settlement amount on his outstanding loan within three (3) months. Again, on 25th July, 2001, the Bank notified the Defendant of the appointment of M/s Solai Agencies to sell the suit property. 47.The aforesaid letter was sent to the Defendant’s Acknowledged address of “P.O. Box 22333, Nairobi”. This court is satisfied that despite his denial that the Defendant received the requisite statutory notice. 48.The other issue which the Defendant raised is that the Bank sold the suit property for an inordinately low and fraudulent price of Ksh 1,310,000/=. It is the submission of the Defendant that the Bank colluded with the plaintiff to sell the suit property at hardly half the price of the market value. The Defendant referred to the valuation report prepared by Fancy Jeruto Letyo (DW2) dated 2nd February, 2026 which she produced as an exhibit in evidence. The defendant stated that the valuation report is the one and only legitimate one. He pointed out that the valuation report put the market value of the suit property at Ksh 2,800,000/=. 49.According to the evidence of the valuer (DW2), the forced sale value as per the practice before the enactment of the Land Act, 2012 was 75% of the market value and that under Section 97 of the Land Act, 2012, the forced sale in an auction could not go below 70% of the market value. The Defendant argued that the Bank/auctioneer sold the suit property at Ksh 1,310,000/= which is way below 50% of the market value of Ksh 2,800,000/=. 50.The defendant argued that the bank’s selling price was outrightly fraudulent as the same was too low. It is argued that the Bank acted in bad faith in the circumstances. The Defendant urged this court to reject the valuation reports prepared by Lawrence Sang c/o Primeland and Apprails Ltd dated 30.11.2023 and that of S. K. Chemilil c/o Highlands Valuers dated 13th July, 2001. 51.It is the defendant’s submissions that Lawrence Sang, did not produce his valuer’s certificate of registration, the practicing license and gazette notice for the year 2023 in blatant breach of provisions of sections 8(2) and 9 of the Valuers Act, therefore his valuation report cannot be admissible. This court was also urged by the defendant not to admit the valuation report by Highlands Valuers because a third party namely Gerald Kiptoo Ruto produced it yet it was prepared by Mr. S. K. Chemelil who did not produce in court his licenses and professional certificates. 52.The defendant argued that the certificate of registration as a valuer dated 19/10/2023 and the annual practicing certificate for the year 2024 produced by Gerald Kiptoo Ruto cannot legitimize a valuation report prepared in 2001 by a different party altogether. The defendant further argued that the report by Fancy J. Letyo of Kinyua Koech Valuers dated 7/12/2023 is the only credible valuation. 53.The market value is fixed at Ksh 2,800,000/=, therefore the force sale value of Ksh 1,310,000/= is a gross and fraudulent under value of less than 50%, thus justifying the cancellation of the said sale as void. In response to the defendant’s submission over the question as to whether the suit property was sold at an inordinately low and fraudulent price, the Bank argued that it carried out its duty to obtain a proper price making the sale of the suit property legal and non-fraudulent. 54.The Bank urged this court to find, that the Bank proved that it obtained a proper price for the suit property. It pointed out that the suit property was sold at Ksh 1,310,000 which was above the reserve price by Ksh 1,280,000/= based on the valuation report commissioned by the bank which is the only valuation report that provided a reserve price. 55.The bank further pointed out that the defendant’s own valuation was done years after the sale of suit property and as produced by its expert witness indicated that the market value at the time of sale would be Ksh 2.8 million whereas in the valuation commissioned by the bank at the time of sale was Ksh 2.51 million with an acceptable margin difference given the time as admitted by the defendant’s expert witness. 56.The Bank further stated that the practice and the law before the year 2012 confirmed that there was no capping of the reserve price based on the market value. The Bank stated that its expert witness (DW3) was entitled to produce the valuation report on behalf of Highlands Valuers where he is employed. 57.The plaintiff filed a response to the defendant’s submissions on whether the Bank sold the suit property at an undervalue. It’s the plaintiff’s submission that this court should not put much weight to the report filed by the defendant’s experts witness since the same was a belated effort to establish a convenient value for the purposes of this suit. 58.It is also pointed out that the report was prepared 22 years after the public auction and no weight should be attached to the report and should not be used to impeach the sale. I have considered rival submissions over the issue and I have come to the conclusion that the Defendant submission that the Bank’s expert witness was not fit to produce the Banks valuation report is unfounded since the same was drawn on behalf of Highlands Valuers where the Bank’s expert witness is employed. 59.I am also not persuaded that the valuation report commissioned by the bank should be disregarded since no gazette notice was produced. It should be noted that a gazette notice is a public document which is accessible by any party. In any case one cannot obtain a license or certification to practice as a surveyor from the regulatory body without issuance of the gazette notice. I therefore decline to disregard the valuation report commissioned by the Bank dated 13th July 2001. 60.It is apparent from the aforesaid valuation report that the market value of the suit property was put at Ksh 2,510,000/= while the forced sale value was set at Ksh 1,280.000/=. The plaintiff participated in the public auction and was declared the highest bidder having bid for ksh 1,310,000/=. The defendant relied on the valuation report prepared by Kinyua, Koech Valuers dated 7th December 2023. 61.This court notes that the aforesaid valuation report omitted the forced sale value. The report was not also prepared within one year of the auction but was instead prepared 22 years after the public auction. This court is of the opinion that in the circumstances, that no weight should be attached to the said valuation report and should not be used to impeach the sale. 62.The plaintiff bought the suit property at Ksh 1,310,000/= which value is above the forced sale value of Ksh 1,280,000/= and exceeds 50% of the market value. This court is convinced that the property was not undervalued. It is trite law that the chargee has an obligation under Section 77(1) of the Registered Land Act (now repealed) to act in good faith by obtaining the best price possible. It is clear from the evidence tendered that the suit property was not undervalued. 63.The bank obtained the most favourable price from the highest bidder being the plaintiff herein. It would also appear that an undervaluation would not in itself vitiate a sale by public auction. 64.In Desnol Investment Ltd Vs Family Bank Limited [2022] KEHC 15805 (KLR) the court referred to section 97(3) of the Land Act, which is para materia with section 77(3) of the Registered Land Act (repealed) holding inter alia that:“ 29.….. An assertion that there was undervaluation of a charged property was not in itself a ground for a chargor to stand in the way of a chargee whose power of sale has arisen as was held in the case of Palmy Limited Vs Consolidated Bank of Kenya (supra) 30.However, it is important to point out that auctioneers and chargees cannot act with impunity. They have no free hand to sell charged properties at whatever amounts they fancy. If they do, they do so at their own peril. Indeed, chargees also have protection of the law that auctioneers and chargees must adhere to. 31.Consequently, in the event the plaintiff herein felt that the subject properties were sold at an undervalue, its remedy the defendant lay with suing for damages as provided for in section 97(3) of the Land Act”. 65.In the case of Bank of Baroda Vs Kenya Reclaimed Rubber [1985] 2006 KEHC 690 (KLR), the court also held inter alia:“The 2nd Defendant now complains that his property was sold at an under-value. It is true that the sale by public auction did not realize a price anywhere near the value of the property. But then, forced sales rarely realize prices comparable to the value of the property sold. In any event, under section 77(3) of the Registered Land Act, Cap. 300, the 2nd Defendant’s remedy for any loss suffered because of the plaintiff’s alleged irregular exercise of its statutory power of sale, lies in damages”. 66.The defendant also submitted in support of the allegation that the Bank fraudulently and deceptively obtained the Land Control Board Consent for the transfer of the suit property to the plaintiff and also from an inappropriate Land Control Board. 67.The defendant is of the submission that no Land Control Board consent was obtained. He pointed out that the documents produced by the plaintiff indicated that the Control Board consent was obtained from Kericho Land Control Board and not Belgut Land Control. He also pointed out that the consent is addressed to the chairman, Land Control Board P. O. Box 30081, Nairobi instead of the chairman Land Control Board Belgut. 68.It is the submission of the defendant therefore that the Land Control Board consent was fraudulent. In response to the defendant submissions the Bank submitted that it together with the plaintiff lawfully and procedurally obtained the Land Control Board consent for the transfer of the suit property to the plaintiff. 69.The Bank pointed out that the address in the consent is for the chairperson of the Board of the Bank. It is also pointed out that the defendant conceded that the District Commissioner served as the chair of the Land Control Board at the time of the transaction. The Bank argued that the defendant failed to establish that the Bank had fraudulently obtained the Land Control Board consent. The plaintiff testified that upon payment of the purchase price the Bank applied for the Land Control Board consent on 27th March, 2003 and the same was issued on 8th May, 2003. 70.It is further the submission of the plaintiff that it was not a legal requirement to obtain a Land Control Board consent in the circumstances of this case where the property is transferred by operation of law. 71.I have carefully considered the evidence and the rival submissions and it clear to me that the plaintiff presented credible evidence that the Bank lawfully obtained the Land Control Board consent. There is evidence showing that the Bank applied for the Land Control Board consent and was granted a duly signed consent by the then District Commissioner, the Chairman of the Land Control Board, Kericho District. 72.The defendant alleged that the consent was fraudulently obtained, as the application was addressed to Kericho District Commissioner, who had no authority to issue it. At the hearing of this case, the defendant conceded that there was only one Land Control Board for Kericho and the District Commissioner served as its chair. It also came out clearly that after the creation of Divisions the suit property fell under the jurisdiction of Belgut Land Control Board. 73.It is apparent that at the material time. The District Commissioner, Kericho was the chair of the relevant Land Control Board within which the suit land fell. This court after considering the evidence and the submissions, has come to the conclusion that the defendant’s claims is without any basis. The allegations of fraud particularized by the defendant in paragraph 11 of his counter-claim ought to have been proved. The defendant did not tender any evidence to prove the claims or allegations. 74.The other question which arose from the arguments over the issue on Land Control board consent is whether it is a legal requirement to obtain Land Control Board consent. The Court of Appeal in Public Trustee Vs Wanduru [1984] KLR 314 held inter alia as follows“What the Land Control Legislation prohibits without consent is an agreement, a transaction or dealing in agricultural land which comes about as a result of a volitional act between parties themselves. The ownership of land, of whatever type is, also mutable by operation of law: eg by succession or adverse possession. The provisions of the Land Control Act have no application where the claim to title to agricultural land arises by operation of law, such as by adverse possession. It is not an agreement, a transaction or a dealing in agricultural land” 75.In Four Farms Ltd Vs Agricultural Finance Corporation & 20 others [2024] KECA 1802 (KLR) the Court of Appeal states as follows:“A sale of public auction where a chargor fails to repay the loan advanced to him is not a contractual sale. It is a transaction where the charge exercises its statutory power of sale. In other words, it is a sale by operation of law. The proviso to section 3 of the Law of Contract Act captures his when it states thus:“Provided that this section shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneer Act (Cap 526) nor shall anything in it affect the creating of a resulting, implied or constructive trust.The procedure under the sale of public auction, in our view, does not contemplate the issuance of the consent from the Land Control Board as a pre-condition for a valid transfer of land. Not being a contracted sale, we agree that the provisions of the Land Control Act that require that the consent of the Land Control Act that require that the consent of the Land Control Board be obtained were inapplicable to the transaction in question since, as held by Madan J.A (as he then was) in Public Trustee Vs Wanduru Ndegwa (1984) eKLR” 76.It is not in dispute that the suit property in this instant case was sold by public auction. In light of the above cited decisions this court is of the opinion that there was no need to apply for the Land Control Board consent. 77.The Defendant alleged that the Bank purportedly sold the suit property on the basis of it having violated a credit contract between itself and the defendant while relying on a resolution made by persons who purported to be its board members whereas they were not. 78.In his evidence, the defendant stated that his credit contract was consequent to his dismissal varied from the staff interest rate of 3% and 8% for car loan and charged properties respectively per annun to an all-time high commercial interest rate of 20% per annum. He further averred that all the loans were consequently recalled by the Bank thereby making it impossible to repay. 79.It is the submission of the defendant that his dismissal from employment by the Bank and the subsequent variation of his loan contract was an illegality as the same was exercised by a no-board. The defendant further argued that the credit variation of the defendant’s contract vide the Bank’s resolution of 20th March, 1998 which led to the recalling of all the defendant’s loans and the consequent realization of the defendant’s various charged properties including the suit premises should not have arisen and therefore the realization of the suit property was an illegality that should be nullified. 80.The defendant further submitted that the plaintiff and the Bank violated the defendant’s peaceful enjoyment and use of the suit property by colluding to fraudulently transfer the same to the plaintiff and that no auction took place and that if at all any auction took place, the same did not comply with the mandatory legal provisions. 81.The defendant also submitted that the plaintiff and the Bank colluded to transfer the suit property unlawfully and fraudulently by failing to adhere to their own terms of sale because the plaintiff was allowed to pay the auction amount by instalments and also outside the 30 days window period. 82.In response to the defendant’s submissions the Bank is of the submission that the defendant has not proved the allegation of fraud to the required standards. The plaintiff on the other is also of the submission that the allegation of certain individuals conspiring to have him removed from his managerial position at the bank culminating in his termination. It is further the submission of the plaintiff that the defendant conceded in cross examination that the issue of termination of employment was heard in the Employment and Labour Relations Court and that the defendant ought to have sued those conspirators in the employment dispute and not in his court. 83.The Plaintiff further pointed at the defendant’s averment that the Bank sold the suit property in violation of the credit contract by relying on a resolution made by persons who were not the Bank Board members. The plaintiff submitted that the Defendant neither named nor identified those individuals. The plaintiff also responded to the allegations made by the defendant that the auction did not comply with the mandatory legal provisions and submitted that the defendant led not evidence to substantiate the allegation. 84.In response to the assertion by the defendant that the last instalment was paid four days late therefore insinuating non-compliance with the conditions for sale at the auction. The plaintiff pointed out that the said allegation was not pleaded. It is also argued that late payment of the purchase price does not invalidate the contract if the vendor has accepted it. 85.Having considered the evidence and the rival submissions on the various allegations of fraud set out in paragraph 11 of the defence and counter-claim I have come to the following conclusions. First, that having pleaded that the Bank sold the suit property in violation of the credit contract by relying on a resolution made by persons who were not the Bank’s Board members, the defendant failed to tender evidence to prove the allegation. Secondly, the defendant stated that the auction did not comply with the mandatory legal provisions. It is apparent that the defendant did submit any evidence to substantiate this allegation, therefore the allegation must crumble. Thirdly, it is clear that the defendant did not plead the allegation that the last instalment was paid 4 days late thus insinuating non-compliance with the conditions of sale at the auction. 86.This court cannot therefore deliberate on an issue which was never pleaded. The Court of Appeal in Mareco Ltd Vs Green Future Ltd & another [2017] KECA 113 (KLR) held inter alia:“It is trite law that issues for determination by a court flow from the pleadings. A court cannot make pronouncement on issues not raised in the pleadings filed by the parties, and to do so would be tantamount to acting outside its mandate”. 87.Even if the issue/allegation was pleaded the question of late payment of purchase price does not and cannot invalidate the contract. If like in this case, the vendor accepted it. In Casucci Vs Bando Project (K) Limited [2023] KEELC 16389 (KLR) the plaintiff paid the purchase price in instalments, many of which were paid out of time. The court held that by accepting the instalments and not repudiating the contract, the defendant had waived the right to do so. 88.Consequently, this court disregards the allegation that the plaintiff did not comply with the conditions of sale. Fourthly, it is trite law that fraud is a serious allegation that must be alleged and particularized, but must be proved through evidence. The cardinal rule of evidence is that he was alleges must prove the allegations. The burden of proof rests with the person who alleged. In this case, the defendant in alleging fraud bears the burden of prove that the sale of the suit land, transfer and the subsequent registration of the plaintiff as the registered proprietor was fraudulent. This court has already taken note of the fact that the defendant failed to discharge the burden of prove. 89.The final question on the first main issue which arose for determination is whether the defendant is entitled to the orders sought in the counter-claim. The defendant has in his counter-claim prayed for judgment against the Bank and the plaintiff jointly inter alia for a declaration that the said sale to the plaintiff is void abinitio, general damages and costs of the suit. It is the submission of the bank and the plaintiff that the defendant is not entitled to the orders prayed in the counter-claim. 90.This court was invited by the defendant to declare the sale of the suit property to the plaintiff to be void abinitio. This court has already found that the defendant did not establish that the sale was done fraudulently hence the defendant’s equity of redemption was extinguished at the fall of the hammer in the public auction of the suit property. As regards the claim for general damages, this court is of the opinion general damages cannot be jointly ordered as against the Bank and the plaintiff since the plaintiff is an innocent and Bonafide purchaser for value and the Bank having proved that the sale of the suit property was not fraudulent nor in breach of the laid down provisions of the law as alleged by the defendant. 91.The plaintiff testified that he is an innocent purchaser for value, without any notice of the wrangles between the bank and the defendant concerning the termination of the defendant’s employment which was the subject of a separate suit and determined by a competent court. This court is of the opinion that the plaintiff was under no duty to inquire into issues leading to the default and sale. 92.The Court of appeal in Nyangau Vs Heritage Insurance Company Ltd [2025] KECA 1453 (KLR) held inter alia:“This court in captain Patrick Kanyagia and Another Vs Damaris Wangeci and others (supra) held that there is no duty cast, in law, on an intending purchaser at an auction sale, properly advertised, to inquire into the rights of the mortgage to sell. This position was reiterated by this court more recently in David Katana Ngomba Vs Shafi Grewal Kaka [2014] eKLR”. 93.Between the parties hereto, the Bank’s statutory power of sale was questioned by the defendant in Bii and another Vs Kenya Commercial Bank & Others [2022] KECA 785 (KLR) and in the end, the Court of Appeal allowed the Bank to exercise its statutory power of sale over the defendant’s many properties. I agree with the plaintiff that the decision is admissible before this court by virtue of section 44(1) of the Evidence Act, Cap 80 Laws of Kenya. 94.The law under section 77(3) of the Registered Land Act (now repealed) guarantees a good title to such a purchaser as the plaintiff herein. The only remedy for an aggrieved chargor where the statutory power of sale has been conducted was and still remains damages against the chargee. 95.The chargor has no remedy against a purchaser. The import of Section 77(4) of the Registered Land Cat (now repealed) is that once a chargee exercised its power of sale and transfers the property to a third party upon registration, the chargor’s interest is transferred to the third party without any encumbrance with respect to the charge. This court has come to the conclusion that if the defendant was entitled to any remedy, the same could only relate to payment of damages but not the cancellation of the sale. 96.Having failed to prove his claim in the counter-claim, it is trite law that costs follow the event; therefore, the Bank and the plaintiff are entitled to costs of the counter-claim. 97.The second main issue is whether the plaintiff is entitled to the prayers for vacant possession of L. R. No. Kericho/Kabianga/ 1824, mesne profits, interest and costs sought in his plaint. It is the submission of the defendant that looking at the totality of the plaintiff’s claim it cannot be said that the plaintiff’s case has been proved on a balance of probabilities therefore the relief for vacant possession cannot be granted. 98.The defendant further argued that mesne profits cannot be granted as the same was not particularized in the plaint yet it is a liquidated claim that is a special damage that has to be specifically proved and not speculated over. The defendant further pointed out that it was never stated neither was it known what the plaintiff intended to utilize the parcel of land to justify his prayer for mesne profits. The defendant further attacked the report prepared and produced by Harrison Kirui dated 17th January, 2024 stating that the same cannot be relied upon on as it hangs in the air since there was no foundation laid by the plaintiff in his pleadings and or in his evidence as to how he would have utilized the subject parcel of land. 99.The defendant is of the opinion that the evidence of Harrison Kirui should not be relied upon in assessing mesne profits because he is not an expert in farming or in tea farming. The defendant further pointed out that the report produced by Harrison Kirui is not an independent report but a secondary report. It is also stated that the report is erroneous in that it is indicated that the land measuring 9 acres is covered by tea bushes yet the Bank indicates that the area covered by tea is a maximum of 6 acres. It is also pointed out that Harrison Kirui in preparing the report wholesomely relied and adopted Primeland Appraisal Ltd valuation. 100.The Bank is of the submission that the plaintiff proved its case, being the registered proprietor of the suit property and being deprived from enjoying possession of the suit property from the time of registration to date, it is just, equitable and fair for this court to grant an order for vacant possession of the suit property, Mesne profits as proved during the trial, interest and costs of the suit. The evidence tendered at the trial leaves no doubt that the defendant was indebted and in default of his obligations to the Bank. The defendant admitted in his witness statement dated 18th January, 2024 that his monthly salary was stopped thereby frustrating repayment of his credit facilities. 101.The fact that the defendant was in default, the Bank was entitled to exercise its statutory power of sale under section 74 of the Registered Land Act (now repealed). This court is satisfied that the Bank complied with section 74(1) of the Registered Land Act (now repealed) by notifying the defendant that his properties including title L. R No. Kericho/Kabianga/1824 would be sold if he did not remit the full settlement amount outstanding within 3 months. 102.This court is convinced that the plaintiff obtained good title under section 77(3) of the Registered Land Act and is therefore not impeachable. It is clear that the plaintiff has been registered as the proprietor of L. R No. Kericho/Kabianga/1824 since 4th June, 2003. It is therefore evident that the defendant kept the plaintiff out of the suit property for nearly 24 years. The plaintiff testified before this court that he attempted to take possession of the suit land but the defendant hired goons who chased his workers and carted away materials the plaintiff had purchased to erect a fence around the property. 103.This court in the circumstances is convinced that the plaintiff is entitled to the order for vacant possession. The defendant is hereby ordered to vacate the suit land ie from L. R. No. Kericho/ Kabianga/1824 and hand over vacant possession of the suit land within 90 days failing which an order for eviction do issue at the cost of the defendant. 104.The other remedy the plaintiff sought is mesne profits. I have already taken note of the fact that the Bank is in support for a grant of mesne profits. I have also considered the stand taken by the defendant in which he opined that the plaintiff is not entitled to mesne profits. In Attorney General Vs Halal Meat Produces Ltd [2016] KECA 306 (KLR), the Court of Appeal held inter alia:“It follows therefore that where a person is wrongfully deprived of his property, he/she is entitled to damages known as mesne profits for loss suffered as a result of wrongful period of occupation of his property by another” 105.The plaintiff urged this court to award him mesne profits based on the valuation conducted by the tea valuer, Harrison Kirui (PW2). PW2 testified and told this court that he holds a maters degree in Rural Economics and has 30 years’ experience in the tea industry. PW2 produced a report he prepared dated 17th January, 2024 in which he indicated that the entire parcel of land measuring 9 acres covered by mature tea bushes. He gave an average of Ksh 58,400/= per acre per year. He multiplied the same by 9 acres and 21 years the defendant had been in occupation ie. 57,400 x 9 x 21 = Ksh 11,037,600/=. 106.The plaintiff invites this court to take into account the testimony of the tea valuer (PW2) in assessing the mesne profits and find it as reasonable. In Mc Gregor On Damages Twentieth Edition 39-044. It is stated as follows:“Where the defendant wrongfully deprives the claimant of his land, the claimant will generally wish to recover not the value of the land but eh land itself. The principal action is therefore an action for the recovery of the land, historically better known as the action of ejectment. Damages will thus generally be limited to loss arising from the period of wrongful occupation by the defendant. Such damages are recoverable in the action of mesne profits, in origin an action of trespass. This action was formerly brought after judgment in ejectment but it may now be joined with the action for recovery of the land itself”. 107.This court is satisfied that the plaintiff is entitled to claim for mesne profits. The question is how can mesne profits be measured. I have already set out the plaintiffs proposed assessment given by PW2. In the same treatise Mc Gergor on Damages (supra) 39-046 it is stated in part as follows:“If the rental value due to market fluctuations during the period of wrongful occupation, these fluctuations should be taken into account” 108.In the report produced by PW2, the witness seems to have kept the income constant yet it is normal to have weather and climatical changes which will obviously affect the tea production. The price of tea also keeps fluctuating and it was important to take stock of those fluctuations. The report produced by PW2 has been pointed out to have erroneously indicated that the whole parcel of land measuring 9 acres is wholly covered by tea bushes. 109.From the evidence presented by the Bank only 6 acres of that land is covered by tea bushes. PW2 admitted in cross examination that only 6 acres was covered by tea bushes. In this case what mattered is that trespass had occurred and it was necessary to ascertain the value of the benefit to the defendant of that trespass, which was the function of the hypothical negotiation. The figure put forward by PW2 that is Ksh 58,400/= income per annum per acre. The defendant merely disputed the report but did not suggest or propose the amount of income he got per acre during the period he has been in occupation and use of the suit property. I will use the proposed figure of Ksh 58,400/= as a guide and reduce it by 10% as a margin of error and take into account that the land for gainful income from tea is 6 acres. Therefore, I assess damages for mesne profits as follows:58,400 x 6 x 21 = 7,358,400Less 10% ie 735,840Net total 6,622, 560Consequently, the plaintiff is awarded Ksh 6,622,560/= as damages for mesne profits. 110.I am further convinced that the amount the award on damages for mesne profit should attract interest at court rates from the date of judgment until the date of full payments. The plaintiff being successful litigant is awarded costs of the suit and the counter claim. 111.In the end judgement is entered in favour of the plaintiff in the original suit (2nd defendant in the counter-claim) and the Bank (the 1st defendant in the counter-claim) as against the Defendant (plaintiff in the counter-claim) as follows:(i)The counter-claim is dismissed with costs to the plaintiff (original suit) and the Bank (1st defendant in the counter-claim) payable by the defendant (plaintiff in the counter-claim)(ii)An order for vacant possession is issued directing Elijah Kipng’eno Bii, the defendant herein to vacate and deliver vacant possession of L.R No. Kericho/Kabianga/1824 within 90 days failing which an order for eviction do issue at the cost of the defendant(iii)The defendant (original suit) to pay the plaintiff (original suit) a sum of Ksh 6,622,560/= being damages for mesne profits.(iv)The award of Mesne profits in (iii) above to attract interest at court rates from the date of judgment until the date of full payment.(v)The plaintiff is awarded costs of the suit payable by the defendant (original suit). DATED, DELIVERED AND SIGNED AT NAKURU THIS 13TH DAY OF AUGUST, 2026J. K. SERGONJUDGEIn presence of:Ruto C/AOjiambo for the PlaintiffSumba for the DefendantMiss Gathuhi for the 1st Defendant