https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10234

Wangombe v David View Line Auctioneers & 2 others (Civil Case E228 of 2025) [2026] KEHC 10234 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 10234 (KLR) Republic of Kenya In the High Court at Meru Civil Case E228 of 2025 HM Nyaga, J July 3, 2026 Between Catherine Wangombe Applicant and David View Line Auctioneers 1st Respondent Kenya Women Finance Trust 2nd Respondent Japhet Kimutu Baimula 3rd Respondent (Being an appeal from the judgment and decree of Hon. D.N Bosibori Senior Resident Magistrate) delivered o 18th August 2025 in Maua Chief Magistrates Court Environment & Land Case No. E277 of 2018).) Judgment Background: 1.By an amended plaint dated 25th August 2020, the appellant sought the following prayers against the defendants:a.An order of injunction restraining the defendants by themselves their agents, employees, and/or anybody else whosever acting on their behalf from selling, auctioning transacting or leasing dealing with disposing and/or transferring of land parcel Nyambene/Antubetwe/2400 until April 2009 when the loan is due for clearance.b.General and punitive damages for illegal sale of parcel number Nyambene/Antubetwe Njoune/2400.BB.A declaration that any purported sale and/or auction by the defendant land parcel No. Nyambene/Antubetwe Njoune/2400 is null and void.BC.An order directing the District Land Registrar, Meru North to cancel the transfer land parcel No. Nyambene/Antubetwe Njoune/2400 to the 3rd defendant name and have the said Land Parcel Number Nyambene Antubetwe/Njoune/2400 recorded in the names of plaintiff.c.Any other or better order the court deems fit to grant as will meet the ends of justice.d.The costs of the suit. 2.The appellant’s case was that sometime in April 2015 she secured a loan from the 2nd defendant to the tune of Kshs.500,000/=. She claimed that she had been servicing the loan as agreed and at the time of filing suit her loan balance was Kshs.750,000/=. 3.The appellant further averred that on 18th December 2018, the defendants informed her that they had sold her parcel of land without her knowledge. She averred that the action of the 1st defendant acting on behalf of the 2nd defendant was malicious and illegal. She set out particulars thereon as follows:a.Failure to serve her with the 40 days statutory notice in accordance with section 96(2) and (3) of the Land Act.b.Failure to address her on her rights under section 90 of the Land Act, 2012;c.Failure to conduct a valuation report the suit property in accordance with section 97(1) and (2);d.Failure to properly or at all serve her with a 45-day redemption notice of immovable property pursuant to rules 15(d)(b) of the Auctioneer rules, 1997; ande.Re-depositing the amount she had paid to the court dated 27th April, 2019 without her knowledge and/or leave of court. 4.The 1st and 2nd defendant filed a joint amended defence denying liability. 5.The 3rd defendant filed defence denying liability and filed a counter-claim in which he sought the following orders:a.A declaration that the public auction conducted on 18th December, 2018 was duly undertaken.b.A declaration that the plaintiff in the counterclaim is the legal registered proprietor of the suit land.c.Mesne profit since 18th December 2018 until when vacant possession is granted to the plaintiff in the counterclaim.d.Loss of user for the value of the suit land.e.Interest on (c) above at the court’s rate.f.An order of eviction of the defendant in the counter claim from the suit land.g.Costs of the suit and costs of the counterclaim. 6.After a full trial, the trial court delivered its judgment on 18th August 2025 whereby it dismissed the appellant’s suit with costs. It also allowed the 3rd defendant’s counter-claim in terms of prayers (a) (b), (f) and (g). 7.The trial court further ordered the appellant to vacate land parcel No. Nyambene/Antubetwe Njoune/2400 within 3 months from the date of the judgment failing which eviction would issue. The Appeal 8.Aggrieved by the said judgment, the appellant lodged a Memorandum of Appeal dated 6th October 2025 which set out the following grounds:a.The learned magistrate erred in law and in fact failing to consider that the appellant was the original registered owner Land Parcel No. ANTUBETWE/NJOUNE/2400.b.The learned magistrate erred in law and in fact failing to consider that the appellant had cleared the financial accommodation extended her.c.The learned magistrate erred in law and in fact in discrediting/dismissing the evidence that the evidence that the appellants has never been served with the redemption notices for sale of land parcel no. ANTUBETWE/NJOUNE/2400.d.The learned magistrate erred in law and in fact in failing to appreciate that the 1st respondent never served any notices upon the appellant.e.The learned magistrate erred in law and in fact in holding that 1st respondent was a valid registered owner of land parcel no. ANTUBETWE/NJOUNE/2400 despite there being clear records on how the transfer was done.f.The learned magistrate erred in law and in fact in holding that the 3rd respondent had acquired a clean title deed, whereas the 1st and 2nd respondents never followed the right procedure of execution of a financial accommodation.g.The judgment of the learned magistrate is bad in law. 9.The parties filed submissions which were largely what they had submitted before the lower court. I will not rehash them, but having gone through them, I will refer to them where necessary. Analysis and Determination 10.This court’s duty is to re-evaluate the evidence adduced before the trial court and arrive at its own independent conclusion. (See Selle vs Associated Motor Boat Co. Ltd (1973) 123.) 11.The plaintiff’s evidence in a nutshell was that she had taken a loan from the 2nd defendant. She was to repay the loan in monthly instalments of Kshs.1,000,000/= which she did. That unknown to her 2nd defendant instructed the 1st defendant to sell her property without giving her the requisite statutory notices. She averred that there was no auction conducted and that the defendants colluded and had her property illegally transferred to the 3rd respondent. 12.The 1st respondent confirmed having received instructions from the 2nd respondent. That he served the statutory notification of sale. That the auction took place on 18th December 2019 after advertising the same on 5th December 2018. 13.The 2nd respondent, through its witness, confirmed that it advanced the appellant a banking facility of Kshs.3,000,000/= secured by a charge over the suit property. That the appellant failed to service the loan as agreed. That it issued the statutory notices as required through the address provided by the appellant. That when the appellant failed to regularize the loan repayment, it instructed the 1st respondent to proceed to dispose of the security. 14.The 3rd respondent stated that he saw the advertisement of the intended sale which was to take place on 18th December 2018. That he attended the auction and he was declared the highest bidder and paid Kshs.3,000,000/= being the reserved value of the property. 15.Having considered the matter, I find that the following issues fall for determination:a.Whether the appellant defaulted on the loan repayment.b.If the 2nd respondent issued the requisite statutory notices.c.If the 1st respondent issued the statutory notices.d.Whether the sale was irregular as alleged by the appellant.e.What orders are to issue? 16.The appellant’s suit was premised on the averment that she had been servicing the loan as agreed between her and the 2nd respondent. She also averred that there was no auction as alleged. That her property was undervalued as it was valued at over Kshs.3,000,000/=. 17.From the evidence adduced before the trial court, it is clear that the appellant was not candid in her averment that she had serviced the loan as agreed between her and the 2nd respondent. The loan statement of account, which was produced by the 2nd respondent, shows that the loan repayments were erratic and hardly reached the agreed instalments for any month. For instance, in the month of January 2018, the total loan repayments were Kshs.37,784/=. In April 2018 the total repayments were Kshs.18,440/=. 18.A borrower who secures a loan with a lender has the obligation to repay the same as contracted. Any variation to the contract ought to be by mutual agreement. 19.Clearly, the appellant did not abide by the terms of contract between her and the 2nd respondent. 20.Once the default occurred then the 2nd respondent was entitled to initiate the means available for recovery of the money lent to the appellant. 21.It was the appellant’s submission that the 2nd respondent failed to comply with the mandatory provisions of the Land Act regarding service of statutory notices. 22.I agree with the decision in Nyangilo Ochieng & Another v Kenya Commercial Bank, Court of Appeal at Kisumu, Civil Appeal No. 148 of 1995 (1996) eKLR, cited by the appellant on the burden of proving service of the statutory notices. The Court of Appeal stated as follows:-“It is for the chargee to make sure that there is compliance with the requirements of s.74 (1) of the Registered Land Act. That burden is not in any manner on the chargor. Once the chargor alleges non-receipt of the statutory notice it is for the chargee to prove that such notice was in fact sent”. 23.The 2nd defendant adduced evidence of service of the statutory notices issued to the appellant, through the address she had given to the 2nd respondent at the time she signed the loan forms and executed the charge. The said documents were tendered as exhibits. 24.Section 90 of the Land Act provides as follows as regards service of the notice before it can exercise its power of sale:(1)If a chargor is in default of any obligation, fails to interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.(2)The notice required by subsection (1) shall adequately inform the recipient of the following matters—(a)a) the nature and extent of the default by the chargor;(b)b) if the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed;(c)c) if the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so as to rectify the default and the time, being not less than two months, by the end of which the default must have been rectified;(d)d) the consequence that if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of the remedies referred to in this section in accordance with the procedures provided for in this sub-part; and(e)e) the right of the chargor in respect of certain remedies to apply to the court for relief against those remedies.(3)If the chargor does not comply within two months after the date of service of the notice under, subsection (1), the chargee may—(a)a) sue the chargor for any money due and owing under the charge;(b)b) appoint a receiver of the income of the charged land;(c)c) lease the charged land, or if the charge is of a lease, sublease the land;(d)d) enter into possession of the charged land; or(e)e) sell the charged land; 25.Upon expiry of the notices, the 2nd respondent was entitled to exercise its right as provided under section 96(1) of the Act which provides as follows: -Chargee’s power of sale.96.(1)Where a chargor is in default of the obligations under a charge and remains in default at the expiry of the time provided for the rectification of that default in the notice served on the chargor under section 90 (1), a chargee may exercise the power to sell the charged land. 26.The address used by the appellant was the same one that the registered mail was sent to. 27.As regards the notices by the 2nd respondent, I am satisfied that the same were issued as required. 28.The auctioneer/1st respondent also availed evidence of the 45 days’ notice issued to the appellant. He did so by way of registered mail and also took the trouble to serve one of the tenants in the appellants premises. 29.In my view the auctioneer also did comply with the law on service of the notice. 30.The notification of sale issued under rule 15(b) of the Auctioneers rules was also produced. I am satisfied that the notices by the 1st respondent were proper. 31.The appellant alleged that her property was sold at an undervalued price. 32.Section 97 of the Land Act provides as follows:(1)A chargee who exercises a power to sell the charged land, including the exercise of the power to sell in pursuance of an order of a court, owes a duty of care to the chargor, any guarantor of the whole or any part of the sums advanced to the chargor, any chargee under a subsequent charge or under a lien to obtain the best price reasonably obtainable at the time of sale.(2)A chargee shall, before exercising the right of sale, ensure that a forced sale valuation is undertaken by a valuer.(3)If the price at which the charged land is sold is twenty-five per centum or below the market value at which comparable interests in land of the same character and quality are being sold in the open market—(a)a) there shall be a rebuttable presumption that the chargee is in breach of the duty imposed by subsection (1); and(b)b) the chargor whose charged land is being sold for that price may apply to a court for an order that the sale be declared void, but the fact that a plot of charged land is sold by the chargee at an undervalue being less than twenty-five per centum below the market value shall not be taken to mean that the chargee has complied with the duty imposed by subsection (1). 33.The 2nd respondent tendered evidence of a valuation report prepared by Orion Valuers dated 14th December 2018, which valued the property as follows:-a.Market value – Kshs.4,000,000/=b.Mortgage value – Kshs.3,400,000/=c.Forced sale value – Kshs.3,000, 600/= 34.The forced sale value is within the parameters allowed by the law, so I do not see any anomaly with it. 35.The appellant had claimed that no auction took place. She alleged that she learnt this from someone who attended the intended sale. She never called that person as a witness. In my view, that point was not proven. The auctioneer/1st respondent tendered evidence of the advertisement. The highest bidder, who is the 3rd respondent did confirm that he attended the auction. He purchased the property at Kshs.3,000,000/= which was the reserved value. The register and Memorandum of sale were produced as exhibits. 36.After considering the evidence, I am in agreement with the trial court that the sale was conducted in accordance with the law. 37.Consequently, the sale to the 3rd respondent was regular and lawful. 38.It is also clear that there were no orders of injunction in place the time the sale was conducted. 39.There were other issues raised in the lower court touching on the loss of a section of the court record but that was resolved by the trial court and I will not delve into it. 40.In conclusion, I find that the appeal lacks merit and it is dismissed with costs. DATED, SIGNED AND DELIVERED AT MERU THIS 3RD DAY OF JULY 2026.H. M. NYAGAJUDGE.