https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4430

Imala v Impact Investments Ltd & 5 others (Land Case E183 of 2024) [2026] KEELC 4430 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEELC 4430 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E183 of 2024 CA Ochieng, J July 15, 2026 Between Siko Woche Imala Plaintiff and Impact Investments Limited 1st Defendant David Omondi Buop T/A Petro Gap 2nd Defendant Abdulwahild Maalim T/A Screen Republic Gaming 3rd Defendant Henry Ochiel T/A Favourants Cereals 4th Defendant Pegasus Kenya Limited 5th Defendant and African Banking Corporation Interested Party Judgment 1.What is before the Court for determination is the Plaintiff’s Originating Summons dated 2nd May 2024 and amended on 28th November 2025 where he seeks the following Orders:a.Whether the Defendants should be ordered to immediately vacate all that property known as LR Number 209/10669/5, situated in South B Shopping Centre, Nairobi.b.Whether the Court should issue a permanent order of injunction as against the Defendants from interfering with the Plaintiff’s quiet possession over that property known as LR Number 209/10669/5, situated in South B Shopping Centre, Nairobi.c.Whether the Court should issue an order to the OCS Industrial Area Police Station to assist in the eviction of the Defendants from all that property known as LR Number 209/106695/5, situated in South B Shopping Centre, Nairobi.d.Whether the Defendants should bear the costs of the summons. 2.The Originating Summons is supported by the Plaintiff’s supporting affidavit. He avers that he is the registered owner of LR No. 209/106695/5, hereinafter referred to as the ‘suit property’, situated in South B, Nairobi pursuant to purchase at an auction carried out by Nairobi Channels Auctioneers on behalf of the Interested Party, herein referred to as “the bank”. He confirms that the suit property was then transferred to him and registered in his name. He claims that despite demand to vacate, the Defendants have refused to do so, as they continue to be in illegal possession despite also issuing them with a statutory notice to vacate dated 30th October 2023 as per Section 152 E of the Land Act. 3.On 17th October 2024, the Plaintiff withdrew the suit against the 2nd to 4th Defendants. Response 4.The Originating Summons is opposed by the 1st Defendant vide the replying affidavit of Asha Hersi Moghe. She avers that the 1st Defendant obtained a credit facility of Kshs.60 million from the bank, secured with the suit property. Further, that on 29th June 2017, with the consent of the bank, it entered into a private treaty to sell the suit property to the 5th Defendant, which was to pay part of the purchase price directly to the bank and in that regard, it paid the bank kshs.23 million. 5.She claims that on 20th December 2023, the 5th Defendant rescinded the Sale agreement with the bank and on 20th February 2024, the 1st Defendant was served with Notice dated 30th October, 2023 to vacate the suit property from the caretaker of the said suit property. Attached to the said Notice was a certificate of sale which indicated that the bank, without the knowledge of the 1st Defendant, auctioned the suit property to the Plaintiff on 27th October 2023. 6.She explains that upon conducting a search, the 1st Defendant discovered that the suit property was transferred to the Plaintiff on 20th December 2023 for Ksh.70 million against a valuation of kshs.95,000,000, and that on the same day, the Plaintiff secured a credit facility from the bank. She claims that in essence, the bank purchased the suit property from itself, using the Plaintiff as proxy, in connivance with the 5th Defendant. 7.She points out that the 1st Defendant has filed Milimani Commercial Court HCCOMM/E658/2024: Impact Investment Limited v African Banking Corporation Ltd , Siko Woche Imara & 2 Others, seeking to set aside the impugned auction of the suit property on the basis that it was tainted by material irregularity and fraud, including failure to give statutory notice of ninety (90) days, fourty five (45) days Redemption Notice and Notification of Sale pursuant to Rule 15 (b) Auctioneers Rule, 1997 and failure to use a current valuation thus selling the suit property at a price that was below the market value. 8.On its part, the 5th Defendant filed a replying affidavit sworn by Adan Haji Issak in opposition. He avers that the 5th Defendant purchased the suit property from the 1st Defendant at a consideration of Kshs.23 million, which sum was fully paid and that following discovery of irregularities surrounding the sale, the 5th Defendant instituted HCCOMM. E195 of 2021 against the 1st Defendant and the Bank, where it has pleaded fraud, collusion, and illegality in the purported dealings over the suit property. 9.He contends that the 1st Defendant could not pass a valid title to anyone while the 5th Defendant’s interest is still subsisting and when a dispute between them was in Court. Further, that the Plaintiff is not a bona fide purchaser for value without notice since he failed to exercise due diligence. He also contends that the Originating Summons raises serious and contested issues of fact, including fraud, ownership, and validity of title, which require a full trial, and not a summary procedure as sought. 10.The Interested Party filed a replying affidavit sworn by Faith Nteere, its Senior Legal Manager. She confirms that in 2014, the 1st Defendant approached the bank for a loan facility of kshs.60 million to finance construction on the suit property, which was secured by a Charge dated 29th September 2014, securing the principal sum of kshs.60 million plus interest, charges and costs. She avers that subsequently, the 1st Defendant defaulted in repayment, prompting the bank to initiate statutory recovery measures to protects its financial interest. 11.She explains that the 1st Defendant requested the bank to allow the suit property to be sold by private treaty to the 5th Defendant. Further, pursuant thereto, the 1st and 5th Defendants entered into a sale agreement dated 29th June 2017, where they agreed on a purchase price of ksh.110 million, with completion expected within ninety (90) days. She states that it was also agreed that a deposit of kshs.11 million and part of the balance of the purchase price in the sum of kshs.55,874,143.98 was to be paid by the 5th Defendant to the 1st Defendant’s loan account to facilitate redemption. She reiterates that however, the 5th Defendant failed to honour the agreed completion timelines and sought additional time with the bank but even after the bank extended agreed completion timelines, the 5th Defendant remained in default. 12.She confirms that the 5th Defendant filed Nairobi HCC No. 195 of 2021 and obtained interim relief stopping the bank from selling the suit property in exercise of its statutory right of sale as Chargee vide a Ruling delivered on 16th December 2021, but it was subsequently reviewed and lifted, allowing the bank to sell the suit property to the Plaintiff, at a public auction conducted by Nairobi Channels Auctioneers. 13.The Plaintiff filed a supplementary affidavit in reply. He reiterates that he is not privy to the alleged private treaty agreement between the 1st Defendant and 5th Defendant. He insists that he purchased the suit property in a public auction. On allegations of conniving and alleged fraudulent transactions, he denies colluding with the bank in the purchase of the suit property. He further states that a Chargor’s equity of redemption is automatically extinguished at the fall of the hammer and therefore the continued occupation of the Defendants on the suit property is illegal. 14.The Originating summons was canvassed by way of written submissions. Submissions 15.The Plaintiff submits that he is entitled to quiet possession of the suit property as he is its registered proprietor as evidenced by the title deed issued in his name. Further, that he acquired absolute rights over the suit property, as set out under Section 24 (a) and 26 of the Land Registration Act, and he is entitled to this Court’s protection to enforce his right to property as per Article 40 of the Constitution. He insists that the 1st Defendant’s continued occupation of the suit property amounts to trespass. 16.He also submits that a purchaser in an auction is an innocent party who has been duly protected under Section 99 (2) and (3) of the Land Act, 2012. To this end, he relied on the case of Bomet Beer Distributors Ltd & Another v Kenya Commercial Bank Limited & 4 others [2005] eKLR. 17.He urges the Court to issue eviction orders as per Sections 152A, 152 B and 152E of the Land Act. To buttress his averments, he relied on the following Orders: Ahmed Ibrahim Suleiman and another v Noor Khamisi Surur [2013] eKLR; Willy Kipsongok Morogo v Albert k Morogo [2017] eKLR; Ringera v Muhindi (Environment and Land Miscellaneous Application E128 OF 2021) [2022] KEELC 2481 (KLR); Anyona v Njenga (Environment & Land Miscellaneous Case 02 of 2020) [2021] KEELC 4740 (KLR) (4 March 2021). 18.The 1st Defendant insists that the auction of the suit property and the transfer to the Plaintiff was done fraudulently as the said transaction meets the key ingredients of fraud as laid down in the case of Gichinga Kibutha v Caroline Nduku, [2018] eKLR. It insists that the bank knowingly misrepresented the fact that it was selling the property to the Plaintiff while in actual fact, it purchased the property using the Plaintiff as a proxy. Further, that as a result of the fraud, Section 26 of the Land Registration Act 2012 and Section 96 of the Land Act do not protect the Plaintiff. To this end, it relied on the case of Wambui v Mwangi & 3 others (Civil Appeal 465 of 2019) [2021] KECA 144 (KLR) (19 November 2021) (Judgment). 19.The 5th Defendant submits that the use of Originating Summons amounts to an improper invocation of a summary procedure to determine complex rights. Further, that the Plaintiff does not meet the threshold of a bona fide purchaser for value without notice as he failed to demonstrate that he acquired the suit property in good faith, for valuable consideration, and without notice of any defect. 20.He also submits that the suit is sub judice pending proceedings in HCCOMM No. E195 of 2021 and HCCOMM/E658/2024, in which the suit property and substantially similar issues are in contention. Analysis and Determination 21.I have considered the Originating Summons, respective affidavits and rivalling submissions and the only issue for determination is whether the 1st and 5th Defendants should be ordered to immediately vacate all that property known as LR Number 209/10669/5, and if a permanent order of injunction should issue, restraining them from interfering with the Plaintiff’s quiet possession over the said suit property. 22.It is not in dispute that the Plaintiff is the registered proprietor of LR Number 209/10669/5, following a public auction conducted on 27th October 2023, by Nairobi Channels Auctioneers on behalf of the bank, which contends that it was exercising its statutory power of sale, following the 1st Defendant’s default on a loan charged on the suit property and subsequent breach of a private treaty to sell the suit property to the 5th Defendant. 23.While the 1st and 5th Defendants do not dispute the Plaintiff’s registration as owner of the suit property, they appear to challenge the legality of the auction that led to his registration. They have formally challenged the impugned auction process vide HCCOMM No. E658 of 2024 and HCCOMM No. E195 of 2021 which they contend are yet to be determined. 24.The 5th Defendant however has not denied that it had filed Nairobi HCC No. 195 of 2021 wherein it obtained interim relief stopping the bank from selling the suit property in exercise of its statutory right of sale as Chargee vide a Ruling delivered on 16th December 2021, but the said Orders were subsequently reviewed and lifted culminating in the sale of the suit property to the Plaintiff. 25.The 5th Defendant contends that commencing the instant proceedings by way of Originating Summons is not the proper procedure because the dispute raises numerous contested questions of fact, which ought to have gone to full hearing and not summarily determined. The Plaintiff however insists that the cause of action in this matter is whether the 1st Defendant ought to be evicted from suit property to allow the registered owner enjoy quiet possession. 26.Order 37 of the Civil Procedure Rules contemplates commencement of proceedings by Originating Summons in matters where the issues are straightforward. Further, on a keen reading and interpretation of Order 37 Rule 4 of the Civil Procedure Rules, noting that the Plaintiff acquired the suit property through a public auction and only seeks eviction orders and quiet possession thereof, there are no contested issues herein as claimed by the 1st and 5th Defendants. I hence find that the Plaintiff is not estopped from commencing the proceedings herein through Originating Summons. 27.The 1st and 5th Defendants contend that these proceedings are sub judice HCCOMM No. E658 of 2024 and HCCOMM No. E195 of 2021. The Plaintiff disputes this notion on the basis that this suit was instituted before HCCOMM No. E658 of 2024 and that he is not a party to HCCOMM No. E195 of 2021. 28.On sub judice, Section 6 of the Civil Procedure Act provides as follows:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 29.Since the Plaintiff filed the instant suit earlier than the aforementioned commercial suit, noting that he is the current registered proprietor of the suit property and only seeks to evict the Defendants therefrom. Further, noting that he is not a party to HCCOMM 195 of 2021, and that this suit is only concerned about eviction of the 1st and 5th Defendants from the suit property, I find that this suit is not sub judice as claimed as the issues of the process of the auction are not being dealt with herein. 30.The 1st and 5th Defendants further contend that the Plaintiff is not entitled to an eviction order because the auction process in which he acquired the suit property is unlawful and under challenge in Court. They also argue that he is not a bona fide purchase for value. 31.A purchaser of property in an auction is protected under Section 99 of the Land Act which stipulates thus:‘(1)This section applies to—(a)a person who purchases charged land from the chargee or receiver, except where the chargee is the purchaser; or (b) a person claiming the charged land through the person who purchases charged land from the chargee or receiver, including a person claiming through the chargee if the chargee and the person so claiming obtained the charged land in good faith and for value.(2)A person to whom this section applies—(a)is not answerable for the loss, misapplication or non-application of the purchase money paid for the charged land; (b) is not obliged to see to the application of the purchase price; (c) is not obliged to inquire whether there has been a default by the chargor or whether any notice required to be given in connection with the exercise of the power of sale has been duly given or whether the sale is otherwise necessary, proper or regular.(3)A person to whom this section applies is protected even if at any time before the completion of the sale, the person has actual notice that there has not been a default by the chargor, or that a notice has been duly served or that the sale is in some way, unnecessary, improper or irregular, except in the case of fraud, misrepresentation or other dishonest conduct on the part of the chargee, of which that person has actual or constructive notice.(4)A person prejudiced by an unauthorised, improper or irregular exercise of the power of sale shall have a remedy in damages against the person exercising that power.’ 32.In this regard, the Court of Appeal stated as follows in Moses Kibiego Yator v Eco-Bank Kenya Limited & 2 others [2019] KECA 115 (KLR):“From our own assessment of this matter, we find that the learned Judge did no wrong in finding that there was no irreparable loss. The sale and transfer had already occurred and the 3rd respondent was the new registered owner. Even though the learned Judge did not refer to section 99 of the Land Act 2012, it would seem to us, without deciding the point at this interlocutory stage, that the purchaser is protected, and further that what remedy there is for the chargor who may be subjected to loss lies only in damages.” Emphasis added 33.In Njaguti v Thagana (Environment & Land Case E008 of 2022) [2022] KEELC 13833 (KLR) (22 September 2022) (Judgment), Oguttu Mboya J, while dealing with a similar matter observed as follows:‘In any event, I am also alive to the fact that there is a pending suit, namely, Milimani HCCOM No E089 of 2021, between the Defendant herein, (who is the Plaintiff in the said suit) versus Co-operative Bank Kenya Limited & 2 Others. Consequently, the issue pertaining to the validity or propriety of the public auction can only be gone into and ventilated therein. 76. Be that as it may, what concerns this Honourable court is that the suit property was indeed sold vide public auction and thereafter same was transferred to and registered in favor of the Plaintiff 77. The question that begs the answer is whether upon the sale of the suit property vide public auction and the incidental transfer thereof to the Plaintiff, the Defendant herein, would still be possessed of any lawful rights and or interests thereto. 78. To my mind, the Plaintiff’s rights to and or in respect of the suit property, which are underscored by the Equity of redemption, stood extinguished and terminated upon, the successful sale of thes uit property vide public auction. 79. To use the common parlance, the Defendant’s Equity of redemption was extinguished at the fall of the harmer. Consequently, immediately upon the fall of the harmer the Defendant’s rights to the suit property abated and became extinct, in the eyes of the law.’ Emphasis Mine 34.In the case of Kamulu Academy Limited & Another v British American Insurance (K) Ltd & 2 Others [2018] eKLR, it was held that:“The sale by public auction extinguishes Equity of redemption at the fall of the hammer whether the property is transferred to the purchaser or not…in the case of Mbuthia v Jimba Credit Finance Corporation and another[1986-1989]1EA340(CAK) considered when the impact of an auction sale on the equity of redemption. The charged property was sold by public auction to the second Respondent. The Court of Appeal held:- A sale destroys the equity of redemption in the mortgaged property…The Court will not grant to a mortgagor tendering the moneys due under the mortgage an injunction restraining the mortgage from completing by conveyance a contract to sell the mortgagee from completing by conveyance a contract to sell the mortgaged property in exercise of his power of sale unless it is proved that the mortgagee entered into the contract in bad faith…This means that the mortgagor’s right of redemption is lost as soon as the mortgage either sells the mortgaged property by public auction or enters into a binding contract in respect of it. On the acceptance of a bid at an auction, there is an immediate sale binding on the chargor. The charge is then entitled to immediate possession of the charged property under subsection (2) of the Act.’ 35.In Shah & another v Shah & another (Environment & Land Case 64 of 2021) [2023] KEELC 15728 (KLR) (21 February 2023) (Judgment), it was held as follows:“From the above, if at all the defendants have any remedy, then it is in damages against the persons who exercised the power of sale. I find that the plaintiffs have good title to the land. By virtue of having good title, it is them who are entitled to exercise proprietary rights over the suit land. This is discerned from a reading of section 24 of the Land Registration Act, 2012, which provides as follows:- “Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. “The defendants have not demonstrated any rights over the suit property. I hereby declare that as between the plaintiffs and defendants, it is the plaintiffs who are the registered proprietors of the suit property and the ones who are entitled to exercise proprietary rights over the suit property including the right of use and possession.’’ Emphasis added 36.From the foregoing, I find that once the Plaintiff purchased the suit property through the auction and at the fall of the hammer and having paid the full purchase price and acquired his title to the said property, even if the Defendants were aggrieved with the sale, their equity of redemption was extinguished and their rights to the suit property abated and became extinct, in the eyes of the law. Further, even if they were aggrieved with the process of the auction, they have already filed the aforementioned commercial causes where those issues will be dealt with and cannot interfere with the Plaintiff’s ownership to suit property. It is my considered view that the Plaintiff having purchased the suit property in a public auction acquired absolute rights over the said property, as set out under Section 24 (a) and 26 of the Land Registration Act and he is hence entitled to the Court’s protection to enforce his right to property as per Article 40 of the Constitution. I opine that 1st and 5th the Defendants’ persistence on remaining on the suit property hence amounts to trespass and they should be evicted therefrom. 37.On eviction, Section 152E of the Land Act provides the manner in which unlawful occupiers of private land are to be issued with a Notice to vacate. It is not disputed that the Plaintiff issued the 1st Defendant with a Statutory Notice to vacate on 30th October 2023. Once issued with a notice, a party may seek reliefs as provided for under Section 152F of the Land Act. The Court can then determine whether to confirm the notice or issue appropriate orders. This section provides that:“The Court, after considering the matters set out in sections 152C, 152D and 152E may -(a)confirm the notice and order the person to vacate;(b)cancel, vary, alter or make additions to the notice on such terms as it deems equitable and just;(c)suspend the operation of the notice for any period which the court shall determine; or(d)order for compensation.” 38.In Ringera v Muhindi [2022] KEELC 2481 (KLR), this Court (Okong’o J, as he then was) opined that where an eviction order is sought, a Court is to satisfy itself that the law on eviction as set out in the Land Act has been adhered to and where there is no contestation as to the title, then an eviction order can issue. He stated as follows:“I am of the view that the provisions of Sections 152E to 152 I of the Act were enacted not only to provide a humane manner of carrying out evictions in line with the internationally acceptable standards but also a summary procedure for determining disputes over trespass to land where there is no contestation over title to land.” 39.Based on the facts as presented, noting that the Plaintiff is the registered proprietor of the suit property, which he bought in an auction, but the 1st and 5th Defendants have declined to move therefrom despite being served with ample notice, while relying on the legal provisions cited and applying the principles established in the quoted decisions to the circumstances at hand, I find that the Plaintiff is indeed entitled to orders of eviction as against the 1st and 5th Defendants, if they fail to grant him vacant possession of the suit property. Further, that the 1st and 5th Defendants should hence be permanently restrained from interfering with the Plaintiff’s possession of the suit property. 40.In the foregoing, I find the Originating Summons merited and will allow it. I proceed to enter judgement in favour of the Plaintiff in the following terms:i.The 1st and 5th Defendants be and are hereby ordered to vacate all that property known as LR Number 209/10669/5, situated in South B Shopping Centre, Nairobi, within ninety (90) days from the date hereof.ii.A permanent order of injunction be and is hereby issued as against the 1st and 5th Defendants from interfering with the Plaintiff’s quiet possession over that property known as LR Number 209/10669/5, situated in South B Shopping Centre, Nairobi.iii.An Order is hereby issued to the OCS Industrial Area Police Station to assist in the eviction of the 1st and 5th Defendants from all that property known as LR Number 209/106695/5, situated in South B Shopping Centre, Nairobi after ninety (90) days from the date hereofiv.The 1st and 5th Defendants to jointly bear the costs of the summons. DATED SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JULY, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Ms Kasoha for Interested PartyMugisha for PlaintiffOgechi for 5th DefendantKaveke for 1st DefendantCourt Assistant: Vena