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JudgmentKOLA CHACHA VS KENYA COMMERCIAL BANK AND DAMCO AUCTIONEERS18 min read

KOLA CHACHA VS KENYA COMMERCIAL BANK AND DAMCO AUCTIONEERS

Environment and Land Court at Kilgoris Environment and Land Court · · E. M. WASHE, J

JUDGEMENT

  1. The Plaintiff instituted a Plaint dated 04.08.1988 against the 1st and 2nd Defendants seeking for the following Orders;-
  2. THAT the 1st Defendant do transfer that piece of land known as LR.NO.BUKIRA/BWISABOKA/258 to the Plaintiff or ALTERNATIVELYBUT WITHOUT PREJUDICE the Defendant to be ordered to pay;-
  3. Special Damages ……………………………………………………..KShs 89,921.00
  4. Deposit…………………………………………………………………….KShs 27,000.00
  5. General Damages
  6. Costs and interest
  7. Any other alternative relief which this Honourable Court may grant.
  8. The facts in support of the prayers sought for hereinabove are as follows; -
  9. The Plaintiff pleaded that a person known as SAMUEL ANUNDA owned two pieces of land known as LR.NO. BUKIRA/BWISAROKA/820 and LR.NO.BUKIRA/BWISAROKA/258.
  10. The person known as SAMUEL ANUNDA then offered to charge one of the properties known as LR.NO.BUKIRA/BWISAROKA/820 for a financial facility from the 1st Defendant.
  11. Unfortunately, the person known as SAMUEL ANUNDA failed to meet his financial obligations to meet his financial obligations to the 1st Defendant resulting to the 1st Defendant to initiate the recovery proceedings by auctioning the property known as LR.NO.BUKIRA/BWISAROKA/820.
  12. On instructions of the 1st Defendant, the 2nd Defendant advertised the property known as LR.NO.BUKIRA/BWISAROKA/820 was advertised for auction both in the Nation Newspaper and Standard Newspapers.
  13. Based on the advertisements done in the daily newspapers, the Plaintiff approached the 1st Defendant with an intention to purchase the property known as LR.NO.BUKIRA/BWISAROKA/820.
  14. The 1st Defendant’s representatives in the company of the Plaintiff proceeded to the ground and pointed out the property for auction as the one known as LR.NO.BUKIRA/BWISAROKA/258.
  15. On the understanding that the property he was purchasing was the property known as LR.NO.BUKIRA/BWISAROKA/258, the Plaintiff bid and was declared the highest bidder in the action hence paying a total sum of 27,000/-.
  16. Upon full payment of the purchase price of KShs 27,000/-, the Plaintiff took possession of the property known as LR.NO.BUKIRA/BWISAROKA/258 and commenced developments therein in the year 1983.
  17. However, in January 1984, the person known as SAMUEL ANUNDA caused the arrest of the Plaintiff who was then charged with criminal charges and forced to vacate the property known as LR.NO.BUKIRA/BWISAROKA/258.
  18. Between the period the Plaintiff took possession of the property known as LR.NO.BUKIRA/BWISAROKA/258 and when he was arrested and removed from the said property, the Plaintiff had developed 4 Houses, planted tobacco and sisal all valued as KShs 89,921.00 as at the time of their destruction.
  19. The Plaintiff pleaded that the 1st Defendant acted in a negligent manner and/or misrepresented the facts of the property on auction to be LR.NO.BUKIRA/BWISAROKA/258 knowing very well that the same was not on auction and instead transferring the property known as LR.NO.BUKIRA/BWISAROKA/820 which is not the property the Plaintiff had inspected and accepted to purchase in the auction undertaken by the 2nd Defendant. 
  20. The Plaint was duly served on the 1st and 2nd Defendants and the 1st Defendant duly filed a Memorandum of Appearance 26.08.1988 while the 2nd Defendant did not enter appearance thereof.
  21. Thereafter, the 1st Defendant filed a Statement of Defence dated 18.08.1988 to which they pleaded as follows; -
  22. First and foremost, the 1st Defendant denied knowledge of the person known as SAMUEL ANUNDA being the owner of both the properties known as LR.NO.BUKIRA/BWISAROKA/258 and LR.NO.BUKIRA/BWISAROKA/820.
  23. The 1st Defendant nevertheless admitted that indeed the property known as LR.NO.BUKIRA/BWISAROKA/820 was charged to their institution and became due for auction as provided in the Newspaper Advertisements referred by the Plaintiff.
  24. The 1st Defendant further admitted that an auction was duly undertaken by the 2nd Defendant and the Plaintiff emerged the highest bidder hence allowed to make the three payment against pleaded in the Plaint.
  25. The 1st Defendant pleaded that at all times in that transaction, the property that was on auction and which was purchased by the Plaintiff was LR.NO.BUKIRA/BWISAROKA/820 and not any other property as alleged in the Plaint.
  26. In addition to the above, the 1st Defendant also pleaded that if the Plaintiff proceeded and took possession of any other property other than LR.NO.BUKIRA/BWISAROKA/820, then such an act was based on his own negligence and/or omission and the 1st Defendant can not be liable for any losses occasioned thereafter.
  27. The 1st Defendant therefore sought for the Plaint and the reliefs sought therein to be dismissed with costs.
  28. The hearing between the parties herein proceeded before various Judges in the Superior Court in Kisii and a Judgement pronounced on the 04.04.1996 by the Retired Hon Justice G.P Mbito.
  29. The Plaintiff being aggrieved by the Judgement pronounced on the 04.04.1996 filed an Appeal before the Court of Appeal in Kisumu known as KISUMU CIVIL APPEAL NO. 342 OF 2001.
  30. The proceedings known as KISUMU CIVIL APPEAL NO. 342 OF 2001 were concluded by a Judgement pronounced on the 14.07.2006 with an Order that the judgement pronounced on the 04.04.1996 be set-aside and the Plaint filed by the Plaintiff be heard afresh before the superior Court.
  31. It is based on this order that the Plaint be heard afresh that the matter was transferred from the Kisii High Court to MIGORI Environment & Land Court who in turn transferred the said file to PRINCIPAL MAGISTRATES COURT AT KEHANCHA.
  32. The file proceeded for hearing before the PRINCIPAL MAGISTRATES COURT AT KEHANCHA on the 08.07.2021.

PLAINTIFF’S TESTIMONY & EVIDENCE

  1. The Plaintiff was the first witness who was marked as PW 1.
  2. The Plaintiff introduced himself as a resident of GWIKONGE who is engaged in farming for a living.
  3. The Plaintiff testified that he had sued the 1st Defendant in particular because it had sold him a property known as LR.NO. BUKIRA/BWISABOKA/258 measuring approximately 26 Hectares.
  4. The Plaintiff stated that upon purchase of the property known as LR.NO.BUKIRA/BWISABOKA/258 from the 1st Defendant, he proceeded to take possession and occupy the same for a period of about 6 years.
  5. However, the previous owner of the property known as LR.NO.BUKIRA/BWISABOKA/258 came back and evicted the Plaintiff from the said property.
  6. The Plaintiff confirmed that he had fully paid the full value of the property known as LR.NO.BUKIRA/BWISABOKA/258 and had in fact procured the registration documents of the said property in his own name.
  7. Nevertheless, the Plaintiff informed the Court that all the documents relating to the purchase and registration of the property known as LR.NO.BUKIRA/BWISABOKA/258 were subsequently burnt down when he was evicted by the previous owner of the said property.
  8. The Plaintiff reiterated that he has sued the 1st Defendant because it had sold him the property known as LR.NO.BUKIRA/BWISABOKA/258, it was obligated to issue him with a title for the said property and he specifically denied being interested in refund of any monies.
  9. The Plaintiff denied in toto that he purchased a property known as LR.NO.BUKIRA/BWISABOKA/820 as alleged by the 1st Defendant in his Defence.
  10. On cross-examination, the Plaintiff stated that he was one of the 1st Defendant’s clients having an account in their Migori Branch.
  11. The Plaintiff informed the Court that it was during one of the visits that he learnt that various properties within BUKIRA were on auction.
  12. The Plaintiff became interested in the intended auction and approached the Branch Magistrate who agreed to go and show him the actual property on the ground.
  13. According to the Plaintiff, the Branch Manager proceeded to take him to the ground and pointed out the property known as LR.NO.BUKIRA/BWISABOKA/258 as the property on auction and not LR.NO.BUKIRA/BWISABOKA/820.
  14. The Plaintiff was satisfied with the name and status of the property known as LR.NO.BUKIRA/BWISABOKA/258.
  15. The Plaintiff therefore proceeded to attend the Auction carried out by the 2nd Defendant in Kericho and emerged the highest bidder.
  16. Upon the 2nd Defendant declaring the Plaintiff as the highest bidder, the Plaintiff proceeded to fully settle the purchase price and was given two documents.
  17. However, the Plaintiff is illiterate and was not able to read the contents of the two documents he was issued by the 1st Defendant.
  18. The Plaintiff stated that after the Auction, the title number was changed and he was given a different number from that he had purchased in the auction.
  19. It is upon this discovery of the changes in the title number that he filed the present suit against the 1st Defendant.
  20. The Plaintiff insisted that the property he inspected was LR.NO.BUKIRA/BWISABOKA/258 and that is the one he purchased at the auction in Kericho.
  21. The Plaintiff admitted that he did not go to the area Chief to be shown the property he had purchased.
  22. The Plaintiff confirmed that he paid the fully purchase price which was KShs 27,000/- to the 2nd Defendant.
  23. The Plaintiff testified that he never signed any transfer documents for the property he had purchased from the 1st Defendant.
  24. The Plaintiff concluded the cross-examination by stating that he was not aware that the previous judgement had directed that his purchase price be refunded to him.
  25. At the end of this cross-examination, there was no re-examination and the Plaintiff closed his case.

DEFENCE TESTIMONY & EVIDENCE

  1. The 1st Defendant did not call any witness before the Court on this material day but sought to rely on the evidence and exhibits produced at the superior Court pursuant to an application 28.04.2021 which had been allowed.
  2. A perusal of the proceedings undertaken in the Superior Court show that the 1st Defendant’s witness was one KIPRUTO KIPTOO who was marked as DW 1 and testified on the 30.11.1995.
  3. DW 1 introduced himself as the Officer in Charge of Advances within the 1st Defendant’s Kericho Branch having joined the institution in 1985.
  4. DW 1 informed the Court that one of his core duties is to deal with matters appertaining to lending.
  5. DW 1 stated that he was familiar with the property known as LR.NO.BUKIRA/BWISABOKA/820.
  6. According to DW 1, the property known as LR.NO.BUKIRA/BWISABOKA/820 belonged to a person known as SAMUEL ANUNDA.
  7. The person known as SAMUEL ANUNDA sought for a financial facility from the 1st Defendant and offered the property known as LR.NO.BUKIRA/BWISABOKA/820 to be charged as collateral.
  8. After the charging of the property known as LR.NO.BUKIRA/BWISABOKA/820, the 1st Defendant advanced the registered owner SAMUEL ANUNDA a sum of KShs 13,000/-.
  9. Unfortunately, the debtor SAMUEL ANUNDA failed to honour his repayment obligations and after the 1st Defendant wrote various demand letters, it decided to auction the said security known as LR.NO.BUKIRA/BWISABOKA/820.
  10. The 1st Defendant then instructed the 2nd Defendant to undertake the auction process and sell the said property known as LR.NO.BUKIRA/BWISABOKA/820 to the highest bidder.
  11. The DW 1 informed the Court that the 2nd Defendant duly proceeded to issue the Notification of Sale of the property known as LR.NO.BUKIRA/BWISABOKA/820 which was produced as DEFENCE EXHIBIT 3.
  12. The DW 1 also produced a Copy of the Conditions for Sale issued by the 2nd Defendant regarding the property known as LR.NO.BUKIRA/BWISABOKA/820 as DEFENCE EXHIBIT 4.
  13. The DW 1 produced a letter dated 13.06.1983 from the Plaintiff giving instructions that he account be debited with a sum of KShs 1,050/- for the purposes of paying for the expenses of the property known as LR.NO.BUKIRA/BWISABOKA/820 addressed to the Branch Manager of the 1st Defendant Kericho Branch as DEFENCE EXHIBIT 2.
  14. The DW 1 further produced a letter dated 25.10.1982 from the Plaintiff to the Branch Manager Kericho Branch of the 1st Defendant expressing his interest to purchase the property known as LR.NO.BUKIRA/BWISABOKA/820 as DEFENCE EXHIBIT 3.
  15. DW 1 clarified that when a property is on sale by way of an auction, it is the Plaintiff’s legal obligation to satisfy himself on the nature, location and size of the property on auction.
  16. DW 1 lastly produced the Certificate of Sale of the property known as LR.NO.BUKIRA/BWISABOKA/820 as DEFENCE EXHIBIT 1.
  17. DW 1 stated that the Bank does not furnish any particulars and/or give any sketch maps relating to the said property under auction.
  18. DW 1 confirmed that it had undertaken an official search of the property known as LR.NO.BUKIRA/BWISABOKA/820 before it charged the same and produced the said search as DEFENCE EXHIBIT 5.
  19. In conclusion, DW 1 reiterated that the property known as LR.NO.BUKIRA/BWISABOKA/258 was never charged to the 1st Defendant by its registered owner.
  20. The property that was charged to the 1st Defendant is LR.NO.BUKIRA/BWISABOKA/820 which is what the Plaintiff purchased at the auction.
  21. However, the property known as LR.NO.BUKIRA/BWISABOKA/820 has not yet been transferred to the Plaintiff because of procedural non-compliance including the Land Control Board consent.
  22. At it stands now, the charge by SAMUEL ANUNDA over the property known as LR.NO.BUKIRA/BWISABOKA/820 is still registered on the title.
  23. On cross-examination, DW 1 informed the Court that the 1st Defendant is required to prepare and hand over the Discharge of Charge and thereafter obtain the Consent to Transfer to the new owner.
  24. DW 1 confirmed that the Plaintiff has fully settled the purchase price having been the highest bidder at the auction.
  25. DW 1 stated that although the Plaintiff was declared as the highest bidder in the year 1983, he completed payment of the purchase price in the year 1984.
  26. However, during the period of the auction and payment by the Plaintiff, DW 1 was not yet an employee of the 1st Defendant.
  27. DW 1 admitted that at times, the officials of the 1st Defendant can visit the property charged and/or have the location sketched on a piece of paper for easy identification.
  28. DW 1 also indicated that at times, the 1st Defendant can engage valuers to confirm the worth of the property being charged as security before lending is done.
  29. Nevertheless, the 1st Defendant has not had instances where the property charged is different from the one identified on the ground.
  30. DW 1 further clarified that he was not aware of any challenges that the Migori Branch had in terms of the physical location of the property known as LR.NO.BUKIRA/BWISABOKA/820.
  31. DW 1 testified that the 1st Defendant usually relies on the information given by the customer of where the actual property is located.
  32. DW 1 denied that it was a practice of the 1st Defendant to always send an intended purchaser to the nearest branch.
  33. Consequently, DW 1 specifically denied that the 1st Defendant’s representatives are the ones that took the Plaintiff to the property on auction and pointed the same out to him.
  34. DW 1 clarified that the instructions to the auctioneers usually come from the 1st Defendant’s lawyers.
  35. The only time the local branch is engaged is during the auction exercise where the Branch participates to witness the whole auction process.
  36. After the auction is completed, the details of the auction are sent to the 1st Defendant’s lawyers and the concerned bank for their further action.
  37. DW 1 could not confirm who is the person that received the letters from the Plaintiff and whether they were sent by post and/or hand delivered.
  38. On being referred to DEFENCE EXHIBIT 3, DW 1 stated that he was not the one that prepared the said letter.
  39. On DEFENCE EXHIBIT 4, DW 1 commented that the same was not complete and/or sworn.
  40. DW 1 reiterated that at the time the entire transaction was being undertaken, he was not yet working with the 1st Defendant.
  41. On re-examination, DW 1 reiterated that the purpose of Sketch Maps was to enable the 1st Defendant to locate the property what has been offered as security.
  42. However, these Sketch Maps are not given to potential buyers.
  43. DW 1 stated that the Branches in the 1st Defendant do not undertake official searches but keep key correspondences with its clients.
  44. DW 1 confirmed that the last part to be signed by the highest bidder has not been signed because immediately after the auction, there was a dispute of the property auctioned.
  45. At the end of this re-examination, DW 1 was discharged from the witness box and the 1st Defendant closed their case.
  46. The Court then directed that for a valuation of the property known as LR.NO. LR.NO.BUKIRA/BWISABOKA/258 to be valued to confirm it is had jurisdiction to handle the matter.
  47. The Valuation Report was prepared and the value presented to Court was KShs 24 Million which was beyond the pecuniary jurisdiction of the PRINCIPAL MAGISTRATES COURT.
  48. On the basis of this valuation, the file was again transferred to the MIGORI Environment & Land Court for further proceedings.
  49. The file on arrival to MIGORI Environment & Land Court was again transferred to the present Court after the Judge disqualified himself from having the same.
  50. The KILGORIS Environment & Land Court mentioned the file and directed that parties file their final written submissions.
  51. The Plaintiff filed his final written submissions on the 18.10.2023 while the Defendant filed their submissions on the 15.02.2024.
  52. The court has gone through the pleadings, the evidence by the parties, the exhibit produced and the final submissions when the following issue have been identified for determination.

ISSUE NO 1- WHICH WAS THE PROPERTY ON ACTION BY THE 1ST DEFENDANT?

ISSUE NO 2- WHICH PROPERTY DID THE PLAINTIFF PURCHASE AT THE AUCTION BY THE 2ND DEFENDANT?

ISSUE NO 3- WAS THERE ANY MISREPRESENTATION BY THE 1ST DEFENDANT TO THE PLINTIFF REGARDING THE PROPERTY ON AUCTION?

ISSUE NO 4- IS THE PLAINTIFF ENTITLED TO THE PRAYERS SOUGHT IN THE PLAINT?

ISSUE NO. 5- WHO BEARS THE COSTS OF THE SUIT?

  1. Then court having identified the issues for determination as provided above the same will now be discussed below.

ISSUE NO 1- WHICH WAS THE PROPERTY ON ACTION BY THE 1ST DEFENDANT?

  1. The first issue for determination is to identify the actual property that was on auction by the 1st Defendant.
  2. The Plaintiff pleaded in his Plaint and his testimony that the property which was on auction was the property known as LR.NO. BUKIRA/BWISABOKA/258.
  3. The Plaintiff further testified that the 1st Defendant’s official took him for purposes of identification and inspection of the property identified as LR.NO.BUKISA/BWISABOKA/258.
  4. Consequently therefore, at the time the Plaintiff attended the auction by the 2nd Defendant in Kericho, he was under the impression that the property he was bidding for in the auction was the one identified as LR.NO.BUKISA/BWISABOKA/258 and which is what he purchased.
  5. On the other, the 1st Defendant pleaded in their Defence that the property on auction was known as LR.NO.BUKISA/BWISABOKA/820 which was what had been charged by them.
  6. The 1st Defendant denied ever taking the Plaintiff to any property especially the one known as LR.NO.BUKISA/BWISABOKA/258 as alleged.
  7. The 1st Defendant specifically pleaded and testified that the property known as LR.NO.BUKISA/BWISABOKA/258 was never charged to them and the property which was on auction was LR.NO.BUKISA/BWISABOKA/820.
  8. The 1st Defendant through DW 1 stated that it was the Plaintiff’s obligation to visit the property which he wanted to bid for in the auction known as LR.NO.BUKISA/BWISABOKA/820 and satisfy himself with its nature and/or location.
  9. The 1st Defendant therefore was of the view that the Plaintiff was well aware of the property which he was bidding for at the auction known as LR.NO.BUKISA/BWISABOKA/820 and not any other property.
  10. Section 107 of the Evidence Act, Cap 80 provides as follows; -

“(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) when a person is bound to prove the existence of any facts, it is said that the burden of proof lies on that person”

  1. The interpretation of the above proviso of the Statute places the obligation to prove that the property on auction by the 1st Defendant was LR.NO.BUKISA/BWISABOKA/258 and not LR.NO.BUKISA/BWISABOKA/820.
  2. During the testimony by the Plaintiff, there was no evidence tabled before the Court to prove that the property which had been advertised by the 1st Defendant was LR.NO.BUKISA/BWISABOKA/258.
  3. The 1st Defendant disputes the above allegation and through DW 1 produced a letter dated 25.10.1982 which was produced as DEFENCE EXHIBIT 3 to demonstrate that the actual property for auction was LR.NO.BUKISA/BWISABOKA/820.
  4. Further to that, the 1st Defendant’s witness DW 1 also produced the Notification of Sale marked as DEFENCE EXHIBIT 4 .
  5. Clearly therefore, the property that the 1st Defendant was in a position to offer for auction was L.R.NO. BUKISA/BWISABOKA/820 and not any other property.
  6. This Court in essence makes a finding that the property for auction by the 1st and 2nd Defendant was LR.NO.BUKISA/BWISABOKA/820 and not LR.NO.BUKISA/BWISABOKA/258.

ISSUE NO 2- WHICH PROPERTY DID THE PLAINTIFF PURCHASE AT THE AUCTION BY THE 2ND DEFENDANT?

  1. The second issue for determination is to confirm which property the Plaintiff purchased at the auction undertaken by the 2nd Defendant in Kericho.
  2. The Plaintiff testified that the property which he bid for and purchased was LR.NO.BUKISA/BWISABOKA/258 and not LR.NO.BUKISA/BWISABOKA/820.
  3. The Plaintiff further testified that the 1st Defendant handed over to him all the relevant documents for the property known as LR.NO.BUSIKA/BWISABOKA/258 and he took over possession and occupation of the said property for a person of 6 years.
  4. However, at the hearing of this suit, the Plaintiff failed to produce any ownership document for the property known as LR.NO.BUSIKA/BWISABOKA/258 saying that they were burnt down with his house when he was being evicted.
  5. The 1st Defendant denied ever giving the Plaintiff any documents and/or putting into possession and/or use of the property known as LR.NO.BUSIKA/BWISABOKA/258.
  6. The 1st Defendant specifically states that the property which was offered for security was LR.NO.BUSIKA/BWISABOKA/820 which was what was offered for auction in line with the Notification of Sale by the 2nd Defendant which included particulars of the property.
  7. The 1st Defendant in support of the above testimony also produced a letter marked as DEFENCE EXHIBIT 2 which had been authored by the Plaintiff.
  8. The Gist of the letter produced as DEFENCE EXHIBIT 2 was an expression of interest to purchase the property known as LR.NO.BUSIKA/BWISABOKA/820 and not LR.NO.BUSIKA/BWISABOKA/254.
  9. Lastly, the 1ST Defendant also produced a Certificate of Sale issued by the 2nd Defendant after the auction was complete as DEFENCE EXHIBIT 1.
  10. A perusal of all these documents, this Court is satisfied that the Plaintiff herein bid for the property known as LR.NO.BUSIKA/BWISABOKA/820 was declared the highest bidder of the property known as LR.NO.BUSIKA/BWISABOKA/820 contained in the Certificate of Sale dated 25.02.1983.
  11. This Court therefore makes a finding that the Plaintiff purchased the property known as LR.NO.BUSIKA/BWISABOKA/820 at the auction held by the 2nd Defendant and not LR.NO.BUSIKA/BWISABOKA/258.

ISSUE NO 3- WAS THERE ANY MISREPRESENTATION BY THE 1ST DEFENDANT TO THE PLAINTIFF REGARDING THE PROPERTY ON AUCTION?

  1. The third issue is whether or not there was any misrepresentation by the 1st Defendant to the Plaintiff as regards the property which was on auction by the 2nd Defendant.
  2. The Plaintiff pleaded in his Plaint as well as his testimony that the property which he was taken to inspect by the representatives of the 1st Defendant is LR.NO.BUKIRA/BWISABOKA/258 and not LR.NO.BUKISA/BWISABOKA/820.
  3. Similarly, the Plaintiff testified that after the purchase of the property known as LR.NO.BUKIRA/BWISABOKA/258, the same was registered into his name before the 1st Defendant changed it to LR.NO.BUKIRA/BWISABOKA/820.
  4. The 1st Defendant states that even at this moment, the transfer of the property known as LR.NO.BUKIRA/BWISABOKA/820 has not been completed because the Discharge of Charge and the Land Control Board Consent has not been procured.
  5. In other words, the 1st Defendant denied either giving any registration documents of the property known as LR.NO.BUKIRA/BWISABOKA/258 to the Plaintiff and/or in any manner altering or changing the said property with LR.NO.BUKIRA/BWISABOKA/820.
  6. AS earlier stated, the burden of proof lies with the person who alleges.
  7. The burden of proving that the Plaintiff had procured the documents of the property known as LR.NO.BUKIRA/BWISABOKA/258 squarely lies on the Plaintiff.
  8. Even if the registration documents of LR.NO.BUKIRA/BWISABOKA/258 were burnt during his eviction from the said property, a simple Certificate copy of the Green Card from the Department of Lands would have been sufficient to prove his ownership of the said property.
  9. The fact that Notification of Sale and the Particulars of Property attached herein are clear on the property for sale being LR.NO.BUKIRA/BWISABOKA/820, there is evidence that there was any misrepresentation of the security on auction.
  10. The Plaintiff’s allegation that he was taken by one of the 1st Defendant’s representatives and shown the property known as LR.NO.BUKIRA/BWISABOKA/258 is not substantiated as the Plaintiff did not give any name of such a person and/or call any witness to confirm that such an activity indeed happened.
  11. In essence, this Court makes a finding that there is no evidence to prove that the 1st Defendant and/or his employees and/or agents misrepresented any facts to the Plaintiff as to which property was on auction.

ISSUE NO 4- IS THE PLAINTIFF ENTITLED TO THE PRAYERS SOUGHT IN THE PLAINT?

  1. Based on the findings on Issues No. 1 to 3 hereinabove, this Court makes a finding that the Plaintiff is not entitled to any of the prayers sought for in the Plaint dated 04.08.1988.

ISSUE NO. 5- WHO BEARS THE COSTS OF THE SUIT?

  1. Lastly, on the issue of costs, it is settled law that costs follow the event.
  2. In this particular case, the Plaintiff has not succeeded in the proceedings and will condemned to pay costs.

CONCLUSION

  1. In conclusion, the Court hereby makes the following Orders in determination of the Plaint dated 04.08.1988; -
  2. THE PLAINT DATED 04.08.1988 BE AND IS HEREBY DISMISSED.
  3. THE PLAINTIFF IS CONDEMNED TO PAY THE COSTS OF THIS SUIT.


DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 29.07.2024


IN THE PRESENCE OF:

COURT ASSISTANT:MR NGENO

ADVOCATE FOR THE PLAINTIFF:IN PERSON

ADVOCATE FOR THE DEFENDANTS:N/A

    KOLA CHACHA VS KENYA COMMERCIAL BANK AND DAMCO AUCTIONEERS KOLA CHACHA VS KENYA COMMERCIAL BANK AND DAMCO AUCTIONEERS