1. As the title indicates, this matter was initially filed at the Environment & Land Court before it was transferred to this Court. The suit was commenced by way of the Plaint dated 26/10/2020, filed through Messrs Morgan Omusundi Law Firm Advocates , whereof the Plaintiffs initially sued only the 1 st Defendant. The Plaint was however subsequently amended on 7/12/2020, through the Plaintiffs’ new Lawyers, Messrs Sala and Mudany Advocates and the rest of the Defendants added. The prayers now presented are as follows:
a) A declaration that the sale and/or the purported sale of 14/10/2020 and/or or any sale have been conducted by forced sale or in any adverse way to the detriment of the Plaintiffs be declared null and void ab initio .
b) The Honourable Court be pleased to grant an order of injunction restraining the Defendant whether by itself, agents, auctioneers and/or any of them or otherwise from trespassing, alienating, taking possession, from evicting and/or dispossessing the Plaintiff’s further of that parcel, namely, parcel of land, Eldoret Municipality/Block 133/514 & 515 , and/or exercising its equity of redemption
c) An injunction restraining the Defendant from clogging or letting the Plaintiffs’ right of redemption to redeem their property Eldoret Municipality/Block 133/514 & 515 and/or exercising equity of redemption.
d) An order that the Defendants to pay the Plaintiffs the difference between the price of the 1 st valuation being Kshs 42,500,000 and Kshs 17,000,000 which was the auction price for the suit property, with interest from the date of sale until payment in full.
e) Damages to the Plaintiffs.
f) Costs of this suit.
g) Any other relief this Honourable Court deems fit and just to grant.
2. In the body of the Plaint, it was pleaded that the Plaintiffs were the registered owners of the said two properties, that the 1 st Defendant agreed to grant to the Plaintiff a loan/credit facility to the extent of Kshs 16,000,000/-, and as security thereof, the Plaintiffs surrendered the title documents for the properties. It was pleaded further that the Plaintiffs have made payments on the loan but despite that, the 1 st Defendant still persists in demanding extravagant and inflated figures without rendering statements of accounts, and that the Plaintiffs are in occupation of the properties. It was urged that on or about 23/10/2020, the Plaintiffs received a letter from the 1 st Defendant alleging that it had sold the properties through public auction on 14/10/2020, to the 2 nd and 3 rd Defendants at what, according to the Plaintiffs, was an undervalued price based on a Valuation made by the 4 th Defendant. It was then contended that the 1 st Valuation made by L.G. Ringera Valuers and served upon the Plaintiffs as part of the Notification of Sale had valued the properties at Kshs 42,500,000/- as the open market value, and Kshs 32,500,000/- as forced sale value, but the 2 nd Valuation made by the 4 th Defendant undervalued the properties at Kshs 30,000,000/- as the open market value and Kshs 22,500,000/- as forced sale price. According to the Plaintiffs, the sale was conducted fraudulently and secretly without complying with legal procedures and formalities. Particulars of fraud were then particularized and which included failing and/or neglecting to off-set the loan when it had been agreed that proceeds from the sale would off-set the loan, and failing to serve the Plaintiffs with a statutory notice of intention to proceed with the auction, failing to issue a notice requiring the Plaintiffs to pay up or the auction to proceed. It was also pleaded that it is the Plaintiffs who have paid all rents, licences and rates due on the properties, and that the 1 st Defendant is charging “unagreed” and unauthorized interest together with other exorbitant unexplained charges thereby clogging the Plaintiffs’ equity of redemption.
3. In response to the Amended Plaint, the 1 st Defendant, through Messrs G&A Advocates LLP , filed the Amended Statement of Defence dated 13/05/2022, in which it was pleaded that the Plaintiff failed to service the loan, that the public auction was conducted openly, procedurally and in strict compliance with the law, and which auction was occasioned by the Plaintiffs’ breach in servicing the loan. Particulars of breach were then listed and which included failing to service the loan of Kshs 16,000,000/-, failing to pay the monthly instalments of Kshs 214,503.77, permitting the loan account to fall into arrears of Kshs 1,090,588.77 as at 14/06/2019, failing to remedy defaults despite being served with the 90 days and 40 days statutory demands, respectively, and also the 45 days Redemption Notice. The allegation that the 1 st Defendant levied unauthorized interest, charges and penalties on the loan was also denied. The 1 st Defendant then pleaded a Counterclaim in which it was stated that the loan facility was secured by a Charge registered on 29/10/2014 over the two properties, that upon for a restructure thereof, the 1 st Defendant issued the Plaintiffs with the Letter of Offer dated 23/04/2018 which contained the term that the 1 st Defendant would continue to hold a Charge of Kshs 15,596,000/- over the properties, and that the Plaintiffs would service the loan facility by monthly instalments of Kshs 214,503/-. It was pleaded that however, in or about the year 2019, the Plaintiffs defaulted on the loan repayments upon which the 1 st Defendant began the process of realizing its statutory power of sale, that upon the 1 st Defendant’s instructions given on 6/10/2020, the 4 th Defendant as Auctioneers, prepared the Valuation Report dated 9/10/2020 which indicated the open market value for the properties to be Kshs 30,000,000/-, and forced value as 22,500,000/-. It was pleaded further that upon the 1 st Defendant’s further instructions given by way of the letter dated 28/11/2019, Messrs View Line Auctioneers issued to the Plaintiffs a Redemption Notice and a Notification of Sale. It was contended that the Auctioneers thereafter made several unsuccessful attempts to dispose of the properties but failed to attract favourable bids, that the 1 st auction conducted on 3/03/2020 attracted one bid for Kshs 12,000,000/-, the 2 nd which was conducted on 29/07/2020 did not attract any bids, and the 3 rd which was conducted on 3/09/2020, attracted a bid for Kshs 5,000,000/-. It was contended further that in the 4 th auction conducted on 13/10/2020, the 2 nd Defendant, as the highest bidder, finally purchased the properties at Kshs 17,000,000/-, that the 2 nd Defendant paid a deposit of Kshs 4,250,000 at the fall of the hammer and paid the balance of Kshs 12,750,000/- on 22/10/2020. It was asserted that although the Plaintiffs made payments of Kshs 1,940,000/- on 14/10/2020, Kshs 508,000,000/- on 16/10/2020, and Kshs 12,750,000/- on 22/10/2020, the Plaintiffs remained indebted to the 1 st Defendant and as at 6/05/2022, had a debit balance of Kshs 5,650,212.93, which is yet to be settled. The 1 st Defendant therefore prayed for Judgment in the Counterclaim as follows:
a) The Plaintiffs’ suit be dismissed in its entirety.
b) Judgment be entered in favour of the 1 st Defendant for the cumulative amount of Kshs 5,650,212.93
c) Interest on (b) above at Court rates.
d) Costs of this suit.
e) Any other relief this Honourable Court deems fit and just to grant.
4. The 2 nd and 3 rd Defendants, through Messrs Mburu Maina & Co. Advocates , filed the joint Amended Statement of Defence dated 14/02/2022, in which it was averred that the Plaintiffs’ ownership of the properties became extinguished at the fall of the hammer during the public auction conducted on 13/10/2020 and the 3 rd Defendant is now the registered and legal proprietor thereof having acquired its interests from the 2 nd Defendant who purchased the same at the auction. It was averred that the properties were regularly and legally sold at the public auction as a result of the Plaintiffs’ default in servicing the loan, and that the acquisition of the properties was without any knowledge of any fraud or illegality. The 2 nd and 3 rd Defendants then jointly pleaded a Counterclaim in which it was pleaded that the 2 nd Defendant, on or about 28/09/2018, through an advertisement made by the 1 st Defendant’s agent, came to learn of the impending public auction of the properties and decided to participate therein, that the 2 nd Defendant attended the public auction and was declared the highest bidder for an amount of Kshs 17,000,000/- and a Certificate of Sale and Memorandum of Sale between him and the 1 st Defendant’s agent, Messrs View Line Auctioneers made, that the 2 nd Defendant then paid the bid price and subsequently, after an expression of interest by the 3 rd Respondent, after the purchase, the 2 nd and the 3 rd Defendants entered into a private arrangement between themselves wherein the 3 rd Defendant acquired the properties from the 2 nd Defendant for valuable consideration, after which the property was transferred and registered in the name of the 3 rd Defendant. It was contended further that the Plaintiffs have been reluctant in handing over vacant possession of the whole of the properties and have adamantly insisted on retaining forceful occupation of the main house leaving only the rest of the houses to the 3 rd Defendant, which action continues to subject the 3 rd Defendant to financial loss. For this reason, Judgment was sought in the Counterclaim against the Plaintiffs as follows:
a) An order of eviction of the Plaintiffs together with their agents, servants or any other person acting on their behalf from the suit premises known as L.R Nos. Eldoret Municipality Block 13/514 & Eldoret Municipality Block 13/515 .
b) An order of permanent injunction restraining the Plaintiffs together with their agents, servants and/or any employees from trespassing, entering, alienating and/or interfering with the suit properties known as L.R. Nos. Eldoret Municipality/Block 13/514 & 515 , in any other manner.
c) General damages and mesne profits.
d) Costs of the Plaintiffs’ suit and the Counterclaim herein.
e) Interest on prayers (c) & (d) above at Court rates.
f) Any such further and/or other reliefs as this Honourable Court deems fit.
5. The 4 th Defendant, also through Messrs G&A Advocates LLP , filed the Statement of Defence dated 20/07/2022, in which it was pleaded that the 4 th Defendant received instructions on 6/10/2020 from the 1 st Defendant, to carry out valuation of the two properties and thereafter prepare a Valuation Report. It was pleaded that the specific instructions were to provide the market value, mortgage value, forced sale value and the insurance value, that the 4 th Defendant inspected the premises on 7/10/2020 and valued the same on “ as is basis ” as at 9/10/2020 at the market value of Kshs 30,000,000/-, mortgage value of Kshs 25,000,000/-, and forced sale value of Kshs 22,500,000/-. He testified that the 4 th Defendant then prepared the Valuation Report dated 9/10/2020 and presented it to the 1 st Defendant. He denied that the 4 th Defendant undervalued the properties and insisted that the valuation was carried out in conformity with applicable and relevant professional local and international Valuation Manuals.
6. The parties also filed respective Witness Statements, which basically reiterated the positions advanced in the Plaint and the Defences as already set out. They also filed respective bundle of documents. The trial of the case then commenced before me on 19/02/2024 and lasted until 31/10/2025 when it was closed. At the trial, the Plaintiffs called 3 witnesses, while each one of the 4 Defendants called 1 witness.
Plaintiff’s Witnesses’ Testimony
7. The 2 nd Plaintiff, testifying as PW1 , led by her Counsel, Mr. Sala , adopted her Witness Statements, which was basically a restatement of the contents of the Plaint, and also produced the several documents contained in the Plaintiffs’ respective bundles of documents. She testified that the 1 st Plaintiff is her husband. Regarding the 1 st Valuation Report prepared by Messrs Chrisca Real Estates Ltd , she testified that the valuers went to their house and involved the Plaintiffs fully and even shared the Report. Regarding the Report prepared by Messrs Advent Valuers , she testified that they only learnt of it after the properties were disposed of, and that it was prepared less than 1 year later. She reiterated that the 1 st Report estimated the value of the properties at about Kshs 42,000,000/- while the latter estimated it at Kshs 30,000,000/-, a depreciation of Kshs 12,000,000/- in less than 1 year. She stated that they were not objecting to the sale as they had become financially unstable because her husband (1 st Plaintiff) lost his job after about 9 months of taking the loan, although they had a purchaser who was willing to buy the properties at Kshs 35,000,000/-. A position known to the 1 st Defendant but she agreed that they had not yet introduced the potential purchaser to the 1 st Defendant. She agreed that they received the statutory notice, and also the Redemption notice, but testified that by that time, they had already settled a big chunk of the loan and only a balance of about Kshs 6,000/- was remaining. She then testified that they were up to date with their instalments at that time but later on, again, defaulted and thus allowed the 1 st Defendant to sell the property because they did not have any money. She insisted that they were never notified of the latter Valuation Report, that the auction was never advertised, that the last time they were supplied with a loan statement was around January 2020, and the auction was conducted in October 2020. She contended that they are questioning the process of disposal of the properties since they were not involved or notified even after the auction, and were, instead, unceremoniously evicted.
8. Under cross-examination by Mr. R.G. Mwangi , Counsel for the 1 st Defendant, she agreed that they were advanced a loan of Kshs 15,596,000/- for which they offered the two properties as security, which they understood would be sold if they defaulted, and that they owed arrears of about Kshs 1,200,000/- by the time that the auction took place but that the total balance was about Kshs 13,000,000/-. Regarding the two statements produced by the 1 st Defendant, she stated that she only saw them in documents filed in this suit as they had not been given any statements by the 1 st Defendant despite their demands, and that the last statements she received were for around March 2020. She then asserted that they made some payments around that time but the same are not captured in the statements produced. She however agreed that the statements she had herself produced were supplied to the Plaintiffs by the 1 st Defendant. Regarding the potential purchaser she referred to, she insisted that the 1 st Defendant was aware by way of verbal communication and that there was nothing in writing. She agreed that the Valuation Report prepared by Highland Valuers indicates that it was commissioned by the Plaintiffs, and stated that the potential purchaser, one Naomi Tarus , also commissioned a valuation whose Report she however agreed has not been produced in evidence. She also agreed that around July 2019, and also by the 1 st Defendant’s letter dated 8/10/2019, they were informed that they were in default, and also that they participated in all the 3 auctions as they were informed by the 1 st Defendant’s Relationship Manager, and also by the Auctioneers, and that they never made any bids as they were mere observers, and they also did not have money. Regarding the 4 th auction however, she denied participating in it but agreed that they owed the 1 st Defendant at that time, about Kshs 13,000,000/-. She agreed that the 1 st , 2 nd and 3 rd auctions did not attract any suitable bidders because it was around the time of the COVD pandemic. She insisted that they did not owe any debt after the auction was conducted.
9. Under cross-examination by Mr. Lagat , Counsel for the 2 nd and 3 rd Defendants, she denied receipt of the letter/notice dated 1/07/2019 about the scheduled 3 rd auction but agreed that she received a phone call from the 1 st Defendant informing her of the auction on the same day it took place. She confirmed that her postal address is 2897 Eldoret , and also that she had no objection to the sale. She further agreed that the loan awas in arrears at the time of the auction, but insisted that she never saw any advert. She then claimed that the 2 nd Defendant was either an employee of the 1 st Defendant or its representative. Asked from where she derived this information, she stated that it was in the public domain and used to be in the 1 st Defendant’s website but has since been removed. She also claimed that the 2 nd Defendant is a Lawyer representing the 1 st Defendant and thus had a relationship with the 1 st Defendant. She claimed further that the purchaser only paid Kshs 4,000,000/- and the balance of Kshs 12,000,000/- was paid by the 4 th Defendant as the payment was Kshs 16,000,000/- but that the total amount exchanged was in fact Kshs 19,000,000/-. She also agreed that their eviction was effected by the 4 th Defendant and that although they reported the eviction to the police, no one was found culpable or charged in Court. She denied that they voluntarily vacated and insisted that they were forcefully evicted on 10/12/2020, and that she did not know that both properties had been sold. She contended that although she is aware that the 1 st Defendant conducted 3 unsuccessful auctions, she has a problem with the process by which the sale was conducted, and the amount that the properties were sold for. In re-examination, she reiterated that she does not deny that the loan was in default nor that she was notified of the 1 st , 2 nd and 3 rd auctions but insisted that her problem is with the process used to sell the property at the auction, and also that no advertisement of the auction was made. She asserted that she only learnt of the auction on 17/10/2020, 4 days after it had taken place on 13/10/2020, and that it was not until 23/10/2020 that the 1 st Defendant issued written communication, and even then, only after the Plaintiffs had gone to the 1 st Defendant to inquire.
10. PW2 was Gerald Kiptoo Ruto who introduced himself as a Valuer at Highland Valuers Eldoret Branch. He stated that upon the 1 st Defendant’s instructions, they prepared the Valuation Report dated 30/08/2019 by which they found the market value of the properties to be Kshs 36,000,000/-. Under cross-examination by Mr. Robert Mwangi , he stated that he is the one who conducted the valuation and inspected the properties, and that the valuation was for sale purposes only as per their instructions, since the purpose of the valuation determines the value. He also agreed that he was aware that the properties were at that time charged with the 1 st Defendant, the instructing client. He explained that the basis of the valuation was the market value, which is the price that the property could be exchanged for between a willing seller and willing buyer. He stated that he used the Replacement Cost method and the Comparable Sales approach which were the most applicable methods in this case since the properties were residential in nature, and that the fact that the properties were charged as collateral would not change the method he applied, but he would have only used the Comparable method, and not the Replacement method if the properties were vacant. He however agreed that there were ongoing developments, almost complete, in the properties with only about 5% to go. He stated that he valued each of the two properties at Kshs 6,000,000/-, and that valuation is based on comparable values of similar properties, figures which valuers normally obtain from land agents and transactions conducted at the Lands Registries. He insisted that in his valuation, he factored the existing developments in the properties, including the servant quarters, swimming pool, fencing, maisonette, site works and gates, and that he also used the building rates that are normally supplied by Quantity Surveyors. Under cross-examination by Mr. Lagat , he basically reiterated matters he had already stated.
11. PW3 was Pius Isaiah Khaoya , who introduced himself as a Registered Valuer practicing under the name and style of Chrisca Real Estates and testified that he prepared the Valuation Report dated 20/11/2019, under instructions of the 1 st Defendant. He testified that he personally carried out the valuation and confirmed that there are developments on the properties almost 75% completed, and which developments included a swimming pool, fence and gate. He testified that the open market value of each of the properties is Kshs 10,000,000/- each, and that he was not aware that other valuations made in this case 3 months earlier had placed the same at lesser figures as he had not seen those other Valuation Reports, and that he was aware that the properties were charged with the 1 st Defendant. Under cross-examination by Mr. Lagat , he agreed that although the COVID-19 pandemic was in place around 2020 and affected the economy, it emerged around December 2020 after he had already concluded his valuation. He however agreed that the lesser values estimated by the other Valuers could be attributable to the pandemic. In re-examination, he testified that the property is situated in the Elgon View locality, a prime area where one could not get such property size for less than Kshs 6,000,000/-. He insisted that in 2019, the value was Kshs 10,000,000/- even if the economy was affected, and also stated that even now, the value cannot be less than Kshs 10,000,000/- as it could not have shed a whole 1/3 of its value over that period. He explained that forced sale value (auction) is normally 75% of market value or a bit higher, but it cannot be less than 75% of open market value.
Defendant’s Witness Testimony
12. DW1 , Andrew Muchina , introduced himself as working at the 1 st Defendant Legal Department. Led by Mr. R.G. Mwangi , he adopted his Witness Statement and produced the 1 st Defendant’s bundle of documents. He insisted that the 1 st Defendant served all statutory notices upon the Plaintiffs by registered post via the address, P.O. Box No. 2897-30100 Eldoret , and he referred the Court to the copies he produced as well as the certificates of postage. He also denied that they undervalued the properties and drew the Court’s attention to the Valuation Reports he produced, which, according to him, which indicated that the market value was Kshs 30,000,000/- and the forced sale value was Kshs 22,500,000/-. He also insisted that the Notification of Sale and Redemption Notices were all served as indicated by the copies he produced. He then confirmed that they sold the properties to the 2 nd Defendant at Kshs 17,000,000/-, which he described as the highest bid, and stated that this was the 4 th auction attempt. For confirmation of the first 3 unsuccessful attempts, he referred the Court to the documents produced and reiterated that in the 1 st attempt conducted on 3/03/2020, they received a bid for Kshs 12,000,000/-, and that they did not receive any bid for the 2 nd and 3 rd attempts conducted on 30/03/2020 and 29/07/2024, respectively. He confirmed that the properties were sold for Kshs 17,000,000/- on 13/10/2020. Under cross-examination by Mr. Terer , who was holding brief for Mr. Lagat , he stated that the Auctioneers’ Notices were served physically. He also stated that the 3 rd Defendant was named as the 2 nd Defendant’s nominee Under cross-examination by Mr. Sala , he stated that the 3 rd Defendant did not participate in the auction and was only later named as the 2 nd Defendant’s nominee-transferee.
13. He also denied that the 2 nd Defendant was in the 1 st Defendant’s panel of Advocates, and stated that he does not even know whether he is an Advocate, or even know his law firm, if any. However, upon being pressed further, he agreed that he could not confirm that the 2 nd Defendant was not in the panel. He agreed that at an auction, it is the Auctioneer who accepts a bid, not the bank instructing him. He insisted that the auction was advertised but agreed that he did not have a copy of the newspaper advert. He also agreed that although 4 auction attempts were conducted, the statutory notices on record are for only one auction, and also that there is no evidence to show that the Plaintiffs were made aware of the scheduled auctions, and also that he did not produce the 1 st Defendant’s letter giving instructions to the Auctioneer. He also agreed that by law, an Auctioneer is to be instructed within 14 days of an auction, and that the Valuation Report relied upon is dated 9/10/2020, and also that this was more than 10 days after the Auctioneer had been instructed since the auction was conducted on 13/10/2020. He also agreed that 9/10/2020 was a Friday and the date of the auction, 13/10/2020, was a Tuesday, and that therefore, considering that there was an intervening weekend and also the Moi day public holiday, there was only 1 working day, 12/10/2020, in between. He also agreed that the property was sold at Kshs 5,500,000/- less than the forced sale value of Kshs 22,500,000/-, that 75% thereof is about Kshs 16,950,000/- and they sold at Kshs 17,000,000/-, a difference of Kshs 50,000/-, and that under Section 97 of the Land Act , no forced sale should be made at less than 75% of such forced value. Regarding the absence of fresh notices served for each new scheduled auction, he stated that the law does not require service of fresh notices. He stated that 5 different advertisements were published for each attempted auction but agreed that he did not produce a single advertisement in evidence, and also that there is no evidence that the Plaintiffs were made aware of the auctions. He then stated that he could not confirm whether the Valuation Report made by the 4 th Defendant bore the company seal, and also whether the valuer accessed and inspected the properties or whether it was simply a “drive-by” valuation. He insisted that the auction was actually conducted outside the but also agreed that he did not produce a schedule of the people who attended the auction. He also agreed that the sale document does not mention the bank as the seller but maintained that the 2 nd Defendant who bought it at the auction was at liberty to appoint any person as his nominee, and in this case, the 2 nd named the 3 rd Defendant as such nominee. He however agreed that the bank as the seller would have had to give consent for the transfer to the nominee. He also agreed that for the purchase, an aggregate sum of Kshs 16,500,000/-was paid in 3 instalments of Kshs 4,250,000/- on 14/10/2020, Kshs 12,250,000/- on 22/10/2020, and the last one for Kshs 500,000/- but he could not tell who paid that final balance of Kshs 500,000/- made by cheque. In re-examination, he listed the respective dates when each of the respective auction attempts was made.
14. DW2 was Timothy Saruni , who introduced himself as a Registered Valuer and director of the 4 th Defendant, Advent Valuers . Also led by Mr. R.G. Mwangi , he testified that the 4 th Defendant was instructed by the 1 st Defendant to carry out a valuation of the properties, upon which he prepared the Valuation Report dated 9/10/2020, which he then produced. Under cross-examination by Mr. Sala , he stated that he received instructions on 6/10/2020 to carry out the valuation and he inspected the property on 7/10/2020. He agreed that he did not notify the Plaintiffs of the inspection as there was no duty to do so, and confirmed that the Plaintiffs did not participate in the inspection. He confirmed that he valued the properties at Kshs 30,000,000/- but he is aware that Chrisca Valuers had valued it at Kshs 42,500,000/-. He stated that appreciation and depreciation of property is a normal occurrence, and that he could not comment on the question whether property of the nature and size (0.25 acres) as those the subject of this case can attract a purchase price of Kshs 17,000,000/- within the Elgon View locality. In re-examination, he stated that the Valuation Report by Chrisca Valuers , differs from his perhaps because its timing was different from his own, and may have had an impact because the one by Chrisca Valuers was prepared during the COVID-19 period when selling properties was not easy. He also observed that it could be because of the stage of completion of the developments made in the properties since his valuation was carried out when the developments were at about 85% complete while the one by Chrisca Valuers was conducted when they were at about 75%.
15. DW3 was Silas Kiptoo Kibii , the 2 nd Defendant, who introduced himself as an Advocate. Led by his Counsel, Mr. Lagat , he adopted his Witness Statement and produced his bundle of documents. He then testified that he learnt of the public auction from a newspaper advertisement, and denied that he colluded with others to defraud the Plaintiffs of the properties, or that he had ever worked with the 1 st Defendant. He stated that he sold the property to the 3 rd Defendant which he is not related to in any way, and he is thus no longer the owner. Under cross-examination by Mr. R.G. Mwangi , he denied ever being in the 1 st Defendant’s panel of Advocates. He also insisted that he is one who paid the purchase price, and that his bid of Kshs 17,000,000/- at the auction was accepted and he was declared the highest bidder. He also maintained that he was personally present at the auction. Under cross-examination by Mr. Sala , he stated he has abandoned the prayer for eviction of the Plainti
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a) A declaration that the sale and/or the purported sale of 14/10/2020 and/or or any sale have been conducted by forced sale or in any adverse way to the detriment of the Plaintiffs be declared null and void ab initio .
b) The Honourable Court be pleased to grant an order of injunction restraining the Defendant whether by itself, agents, auctioneers and/or any of them or otherwise from trespassing, alienating, taking possession, from evicting and/or dispossessing the Plaintiff’s further of that parcel, namely, parcel of land, Eldoret Municipality/Block 133/514 & 515 , and/or exercising its equity of redemption
c) An injunction restraining the Defendant from clogging or letting the Plaintiffs’ right of redemption to redeem their property Eldoret Municipality/Block 133/514 & 515 and/or exercising equity of redemption.
d) An order that the Defendants to pay the Plaintiffs the difference between the price of the 1 st valuation being Kshs 42,500,000 and Kshs 17,000,000 which was the auction price for the suit property, with interest from the date of sale until payment in full.
e) Damages to the Plaintiffs.
f) Costs of this suit.
g) Any other relief this Honourable Court deems fit and just to grant.
2. In the body of the Plaint, it was pleaded that the Plaintiffs were the registered owners of the said two properties, that the 1 st Defendant agreed to grant to the Plaintiff a loan/credit facility to the extent of Kshs 16,000,000/-, and as security thereof, the Plaintiffs surrendered the title documents for the properties. It was pleaded further that the Plaintiffs have made payments on the loan but despite that, the 1 st Defendant still persists in demanding extravagant and inflated figures without rendering statements of accounts, and that the Plaintiffs are in occupation of the properties. It was urged that on or about 23/10/2020, the Plaintiffs received a letter from the 1 st Defendant alleging that it had sold the properties through public auction on 14/10/2020, to the 2 nd and 3 rd Defendants at what, according to the Plaintiffs, was an undervalued price based on a Valuation made by the 4 th Defendant. It was then contended that the 1 st Valuation made by L.G. Ringera Valuers and served upon the Plaintiffs as part of the Notification of Sale had valued the properties at Kshs 42,500,000/- as the open market value, and Kshs 32,500,000/- as forced sale value, but the 2 nd Valuation made by the 4 th Defendant undervalued the properties at Kshs 30,000,000/- as the open market value and Kshs 22,500,000/- as forced sale price. According to the Plaintiffs, the sale was conducted fraudulently and secretly without complying with legal procedures and formalities. Particulars of fraud were then particularized and which included failing and/or neglecting to off-set the loan when it had been agreed that proceeds from the sale would off-set the loan, and failing to serve the Plaintiffs with a statutory notice of intention to proceed with the auction, failing to issue a notice requiring the Plaintiffs to pay up or the auction to proceed. It was also pleaded that it is the Plaintiffs who have paid all rents, licences and rates due on the properties, and that the 1 st Defendant is charging “unagreed” and unauthorized interest together with other exorbitant unexplained charges thereby clogging the Plaintiffs’ equity of redemption.
3. In response to the Amended Plaint, the 1 st Defendant, through Messrs G&A Advocates LLP , filed the Amended Statement of Defence dated 13/05/2022, in which it was pleaded that the Plaintiff failed to service the loan, that the public auction was conducted openly, procedurally and in strict compliance with the law, and which auction was occasioned by the Plaintiffs’ breach in servicing the loan. Particulars of breach were then listed and which included failing to service the loan of Kshs 16,000,000/-, failing to pay the monthly instalments of Kshs 214,503.77, permitting the loan account to fall into arrears of Kshs 1,090,588.77 as at 14/06/2019, failing to remedy defaults despite being served with the 90 days and 40 days statutory demands, respectively, and also the 45 days Redemption Notice. The allegation that the 1 st Defendant levied unauthorized interest, charges and penalties on the loan was also denied. The 1 st Defendant then pleaded a Counterclaim in which it was stated that the loan facility was secured by a Charge registered on 29/10/2014 over the two properties, that upon for a restructure thereof, the 1 st Defendant issued the Plaintiffs with the Letter of Offer dated 23/04/2018 which contained the term that the 1 st Defendant would continue to hold a Charge of Kshs 15,596,000/- over the properties, and that the Plaintiffs would service the loan facility by monthly instalments of Kshs 214,503/-. It was pleaded that however, in or about the year 2019, the Plaintiffs defaulted on the loan repayments upon which the 1 st Defendant began the process of realizing its statutory power of sale, that upon the 1 st Defendant’s instructions given on 6/10/2020, the 4 th Defendant as Auctioneers, prepared the Valuation Report dated 9/10/2020 which indicated the open market value for the properties to be Kshs 30,000,000/-, and forced value as 22,500,000/-. It was pleaded further that upon the 1 st Defendant’s further instructions given by way of the letter dated 28/11/2019, Messrs View Line Auctioneers issued to the Plaintiffs a Redemption Notice and a Notification of Sale. It was contended that the Auctioneers thereafter made several unsuccessful attempts to dispose of the properties but failed to attract favourable bids, that the 1 st auction conducted on 3/03/2020 attracted one bid for Kshs 12,000,000/-, the 2 nd which was conducted on 29/07/2020 did not attract any bids, and the 3 rd which was conducted on 3/09/2020, attracted a bid for Kshs 5,000,000/-. It was contended further that in the 4 th auction conducted on 13/10/2020, the 2 nd Defendant, as the highest bidder, finally purchased the properties at Kshs 17,000,000/-, that the 2 nd Defendant paid a deposit of Kshs 4,250,000 at the fall of the hammer and paid the balance of Kshs 12,750,000/- on 22/10/2020. It was asserted that although the Plaintiffs made payments of Kshs 1,940,000/- on 14/10/2020, Kshs 508,000,000/- on 16/10/2020, and Kshs 12,750,000/- on 22/10/2020, the Plaintiffs remained indebted to the 1 st Defendant and as at 6/05/2022, had a debit balance of Kshs 5,650,212.93, which is yet to be settled. The 1 st Defendant therefore prayed for Judgment in the Counterclaim as follows:
a) The Plaintiffs’ suit be dismissed in its entirety.
b) Judgment be entered in favour of the 1 st Defendant for the cumulative amount of Kshs 5,650,212.93
c) Interest on (b) above at Court rates.
d) Costs of this suit.
e) Any other relief this Honourable Court deems fit and just to grant.
4. The 2 nd and 3 rd Defendants, through Messrs Mburu Maina & Co. Advocates , filed the joint Amended Statement of Defence dated 14/02/2022, in which it was averred that the Plaintiffs’ ownership of the properties became extinguished at the fall of the hammer during the public auction conducted on 13/10/2020 and the 3 rd Defendant is now the registered and legal proprietor thereof having acquired its interests from the 2 nd Defendant who purchased the same at the auction. It was averred that the properties were regularly and legally sold at the public auction as a result of the Plaintiffs’ default in servicing the loan, and that the acquisition of the properties was without any knowledge of any fraud or illegality. The 2 nd and 3 rd Defendants then jointly pleaded a Counterclaim in which it was pleaded that the 2 nd Defendant, on or about 28/09/2018, through an advertisement made by the 1 st Defendant’s agent, came to learn of the impending public auction of the properties and decided to participate therein, that the 2 nd Defendant attended the public auction and was declared the highest bidder for an amount of Kshs 17,000,000/- and a Certificate of Sale and Memorandum of Sale between him and the 1 st Defendant’s agent, Messrs View Line Auctioneers made, that the 2 nd Defendant then paid the bid price and subsequently, after an expression of interest by the 3 rd Respondent, after the purchase, the 2 nd and the 3 rd Defendants entered into a private arrangement between themselves wherein the 3 rd Defendant acquired the properties from the 2 nd Defendant for valuable consideration, after which the property was transferred and registered in the name of the 3 rd Defendant. It was contended further that the Plaintiffs have been reluctant in handing over vacant possession of the whole of the properties and have adamantly insisted on retaining forceful occupation of the main house leaving only the rest of the houses to the 3 rd Defendant, which action continues to subject the 3 rd Defendant to financial loss. For this reason, Judgment was sought in the Counterclaim against the Plaintiffs as follows:
a) An order of eviction of the Plaintiffs together with their agents, servants or any other person acting on their behalf from the suit premises known as L.R Nos. Eldoret Municipality Block 13/514 & Eldoret Municipality Block 13/515 .
b) An order of permanent injunction restraining the Plaintiffs together with their agents, servants and/or any employees from trespassing, entering, alienating and/or interfering with the suit properties known as L.R. Nos. Eldoret Municipality/Block 13/514 & 515 , in any other manner.
c) General damages and mesne profits.
d) Costs of the Plaintiffs’ suit and the Counterclaim herein.
e) Interest on prayers (c) & (d) above at Court rates.
f) Any such further and/or other reliefs as this Honourable Court deems fit.
5. The 4 th Defendant, also through Messrs G&A Advocates LLP , filed the Statement of Defence dated 20/07/2022, in which it was pleaded that the 4 th Defendant received instructions on 6/10/2020 from the 1 st Defendant, to carry out valuation of the two properties and thereafter prepare a Valuation Report. It was pleaded that the specific instructions were to provide the market value, mortgage value, forced sale value and the insurance value, that the 4 th Defendant inspected the premises on 7/10/2020 and valued the same on “ as is basis ” as at 9/10/2020 at the market value of Kshs 30,000,000/-, mortgage value of Kshs 25,000,000/-, and forced sale value of Kshs 22,500,000/-. He testified that the 4 th Defendant then prepared the Valuation Report dated 9/10/2020 and presented it to the 1 st Defendant. He denied that the 4 th Defendant undervalued the properties and insisted that the valuation was carried out in conformity with applicable and relevant professional local and international Valuation Manuals.
6. The parties also filed respective Witness Statements, which basically reiterated the positions advanced in the Plaint and the Defences as already set out. They also filed respective bundle of documents. The trial of the case then commenced before me on 19/02/2024 and lasted until 31/10/2025 when it was closed. At the trial, the Plaintiffs called 3 witnesses, while each one of the 4 Defendants called 1 witness.
Plaintiff’s Witnesses’ Testimony
7. The 2 nd Plaintiff, testifying as PW1 , led by her Counsel, Mr. Sala , adopted her Witness Statements, which was basically a restatement of the contents of the Plaint, and also produced the several documents contained in the Plaintiffs’ respective bundles of documents. She testified that the 1 st Plaintiff is her husband. Regarding the 1 st Valuation Report prepared by Messrs Chrisca Real Estates Ltd , she testified that the valuers went to their house and involved the Plaintiffs fully and even shared the Report. Regarding the Report prepared by Messrs Advent Valuers , she testified that they only learnt of it after the properties were disposed of, and that it was prepared less than 1 year later. She reiterated that the 1 st Report estimated the value of the properties at about Kshs 42,000,000/- while the latter estimated it at Kshs 30,000,000/-, a depreciation of Kshs 12,000,000/- in less than 1 year. She stated that they were not objecting to the sale as they had become financially unstable because her husband (1 st Plaintiff) lost his job after about 9 months of taking the loan, although they had a purchaser who was willing to buy the properties at Kshs 35,000,000/-. A position known to the 1 st Defendant but she agreed that they had not yet introduced the potential purchaser to the 1 st Defendant. She agreed that they received the statutory notice, and also the Redemption notice, but testified that by that time, they had already settled a big chunk of the loan and only a balance of about Kshs 6,000/- was remaining. She then testified that they were up to date with their instalments at that time but later on, again, defaulted and thus allowed the 1 st Defendant to sell the property because they did not have any money. She insisted that they were never notified of the latter Valuation Report, that the auction was never advertised, that the last time they were supplied with a loan statement was around January 2020, and the auction was conducted in October 2020. She contended that they are questioning the process of disposal of the properties since they were not involved or notified even after the auction, and were, instead, unceremoniously evicted.
8. Under cross-examination by Mr. R.G. Mwangi , Counsel for the 1 st Defendant, she agreed that they were advanced a loan of Kshs 15,596,000/- for which they offered the two properties as security, which they understood would be sold if they defaulted, and that they owed arrears of about Kshs 1,200,000/- by the time that the auction took place but that the total balance was about Kshs 13,000,000/-. Regarding the two statements produced by the 1 st Defendant, she stated that she only saw them in documents filed in this suit as they had not been given any statements by the 1 st Defendant despite their demands, and that the last statements she received were for around March 2020. She then asserted that they made some payments around that time but the same are not captured in the statements produced. She however agreed that the statements she had herself produced were supplied to the Plaintiffs by the 1 st Defendant. Regarding the potential purchaser she referred to, she insisted that the 1 st Defendant was aware by way of verbal communication and that there was nothing in writing. She agreed that the Valuation Report prepared by Highland Valuers indicates that it was commissioned by the Plaintiffs, and stated that the potential purchaser, one Naomi Tarus , also commissioned a valuation whose Report she however agreed has not been produced in evidence. She also agreed that around July 2019, and also by the 1 st Defendant’s letter dated 8/10/2019, they were informed that they were in default, and also that they participated in all the 3 auctions as they were informed by the 1 st Defendant’s Relationship Manager, and also by the Auctioneers, and that they never made any bids as they were mere observers, and they also did not have money. Regarding the 4 th auction however, she denied participating in it but agreed that they owed the 1 st Defendant at that time, about Kshs 13,000,000/-. She agreed that the 1 st , 2 nd and 3 rd auctions did not attract any suitable bidders because it was around the time of the COVD pandemic. She insisted that they did not owe any debt after the auction was conducted.
9. Under cross-examination by Mr. Lagat , Counsel for the 2 nd and 3 rd Defendants, she denied receipt of the letter/notice dated 1/07/2019 about the scheduled 3 rd auction but agreed that she received a phone call from the 1 st Defendant informing her of the auction on the same day it took place. She confirmed that her postal address is 2897 Eldoret , and also that she had no objection to the sale. She further agreed that the loan awas in arrears at the time of the auction, but insisted that she never saw any advert. She then claimed that the 2 nd Defendant was either an employee of the 1 st Defendant or its representative. Asked from where she derived this information, she stated that it was in the public domain and used to be in the 1 st Defendant’s website but has since been removed. She also claimed that the 2 nd Defendant is a Lawyer representing the 1 st Defendant and thus had a relationship with the 1 st Defendant. She claimed further that the purchaser only paid Kshs 4,000,000/- and the balance of Kshs 12,000,000/- was paid by the 4 th Defendant as the payment was Kshs 16,000,000/- but that the total amount exchanged was in fact Kshs 19,000,000/-. She also agreed that their eviction was effected by the 4 th Defendant and that although they reported the eviction to the police, no one was found culpable or charged in Court. She denied that they voluntarily vacated and insisted that they were forcefully evicted on 10/12/2020, and that she did not know that both properties had been sold. She contended that although she is aware that the 1 st Defendant conducted 3 unsuccessful auctions, she has a problem with the process by which the sale was conducted, and the amount that the properties were sold for. In re-examination, she reiterated that she does not deny that the loan was in default nor that she was notified of the 1 st , 2 nd and 3 rd auctions but insisted that her problem is with the process used to sell the property at the auction, and also that no advertisement of the auction was made. She asserted that she only learnt of the auction on 17/10/2020, 4 days after it had taken place on 13/10/2020, and that it was not until 23/10/2020 that the 1 st Defendant issued written communication, and even then, only after the Plaintiffs had gone to the 1 st Defendant to inquire.
10. PW2 was Gerald Kiptoo Ruto who introduced himself as a Valuer at Highland Valuers Eldoret Branch. He stated that upon the 1 st Defendant’s instructions, they prepared the Valuation Report dated 30/08/2019 by which they found the market value of the properties to be Kshs 36,000,000/-. Under cross-examination by Mr. Robert Mwangi , he stated that he is the one who conducted the valuation and inspected the properties, and that the valuation was for sale purposes only as per their instructions, since the purpose of the valuation determines the value. He also agreed that he was aware that the properties were at that time charged with the 1 st Defendant, the instructing client. He explained that the basis of the valuation was the market value, which is the price that the property could be exchanged for between a willing seller and willing buyer. He stated that he used the Replacement Cost method and the Comparable Sales approach which were the most applicable methods in this case since the properties were residential in nature, and that the fact that the properties were charged as collateral would not change the method he applied, but he would have only used the Comparable method, and not the Replacement method if the properties were vacant. He however agreed that there were ongoing developments, almost complete, in the properties with only about 5% to go. He stated that he valued each of the two properties at Kshs 6,000,000/-, and that valuation is based on comparable values of similar properties, figures which valuers normally obtain from land agents and transactions conducted at the Lands Registries. He insisted that in his valuation, he factored the existing developments in the properties, including the servant quarters, swimming pool, fencing, maisonette, site works and gates, and that he also used the building rates that are normally supplied by Quantity Surveyors. Under cross-examination by Mr. Lagat , he basically reiterated matters he had already stated.
11. PW3 was Pius Isaiah Khaoya , who introduced himself as a Registered Valuer practicing under the name and style of Chrisca Real Estates and testified that he prepared the Valuation Report dated 20/11/2019, under instructions of the 1 st Defendant. He testified that he personally carried out the valuation and confirmed that there are developments on the properties almost 75% completed, and which developments included a swimming pool, fence and gate. He testified that the open market value of each of the properties is Kshs 10,000,000/- each, and that he was not aware that other valuations made in this case 3 months earlier had placed the same at lesser figures as he had not seen those other Valuation Reports, and that he was aware that the properties were charged with the 1 st Defendant. Under cross-examination by Mr. Lagat , he agreed that although the COVID-19 pandemic was in place around 2020 and affected the economy, it emerged around December 2020 after he had already concluded his valuation. He however agreed that the lesser values estimated by the other Valuers could be attributable to the pandemic. In re-examination, he testified that the property is situated in the Elgon View locality, a prime area where one could not get such property size for less than Kshs 6,000,000/-. He insisted that in 2019, the value was Kshs 10,000,000/- even if the economy was affected, and also stated that even now, the value cannot be less than Kshs 10,000,000/- as it could not have shed a whole 1/3 of its value over that period. He explained that forced sale value (auction) is normally 75% of market value or a bit higher, but it cannot be less than 75% of open market value.
Defendant’s Witness Testimony
12. DW1 , Andrew Muchina , introduced himself as working at the 1 st Defendant Legal Department. Led by Mr. R.G. Mwangi , he adopted his Witness Statement and produced the 1 st Defendant’s bundle of documents. He insisted that the 1 st Defendant served all statutory notices upon the Plaintiffs by registered post via the address, P.O. Box No. 2897-30100 Eldoret , and he referred the Court to the copies he produced as well as the certificates of postage. He also denied that they undervalued the properties and drew the Court’s attention to the Valuation Reports he produced, which, according to him, which indicated that the market value was Kshs 30,000,000/- and the forced sale value was Kshs 22,500,000/-. He also insisted that the Notification of Sale and Redemption Notices were all served as indicated by the copies he produced. He then confirmed that they sold the properties to the 2 nd Defendant at Kshs 17,000,000/-, which he described as the highest bid, and stated that this was the 4 th auction attempt. For confirmation of the first 3 unsuccessful attempts, he referred the Court to the documents produced and reiterated that in the 1 st attempt conducted on 3/03/2020, they received a bid for Kshs 12,000,000/-, and that they did not receive any bid for the 2 nd and 3 rd attempts conducted on 30/03/2020 and 29/07/2024, respectively. He confirmed that the properties were sold for Kshs 17,000,000/- on 13/10/2020. Under cross-examination by Mr. Terer , who was holding brief for Mr. Lagat , he stated that the Auctioneers’ Notices were served physically. He also stated that the 3 rd Defendant was named as the 2 nd Defendant’s nominee Under cross-examination by Mr. Sala , he stated that the 3 rd Defendant did not participate in the auction and was only later named as the 2 nd Defendant’s nominee-transferee.
13. He also denied that the 2 nd Defendant was in the 1 st Defendant’s panel of Advocates, and stated that he does not even know whether he is an Advocate, or even know his law firm, if any. However, upon being pressed further, he agreed that he could not confirm that the 2 nd Defendant was not in the panel. He agreed that at an auction, it is the Auctioneer who accepts a bid, not the bank instructing him. He insisted that the auction was advertised but agreed that he did not have a copy of the newspaper advert. He also agreed that although 4 auction attempts were conducted, the statutory notices on record are for only one auction, and also that there is no evidence to show that the Plaintiffs were made aware of the scheduled auctions, and also that he did not produce the 1 st Defendant’s letter giving instructions to the Auctioneer. He also agreed that by law, an Auctioneer is to be instructed within 14 days of an auction, and that the Valuation Report relied upon is dated 9/10/2020, and also that this was more than 10 days after the Auctioneer had been instructed since the auction was conducted on 13/10/2020. He also agreed that 9/10/2020 was a Friday and the date of the auction, 13/10/2020, was a Tuesday, and that therefore, considering that there was an intervening weekend and also the Moi day public holiday, there was only 1 working day, 12/10/2020, in between. He also agreed that the property was sold at Kshs 5,500,000/- less than the forced sale value of Kshs 22,500,000/-, that 75% thereof is about Kshs 16,950,000/- and they sold at Kshs 17,000,000/-, a difference of Kshs 50,000/-, and that under Section 97 of the Land Act , no forced sale should be made at less than 75% of such forced value. Regarding the absence of fresh notices served for each new scheduled auction, he stated that the law does not require service of fresh notices. He stated that 5 different advertisements were published for each attempted auction but agreed that he did not produce a single advertisement in evidence, and also that there is no evidence that the Plaintiffs were made aware of the auctions. He then stated that he could not confirm whether the Valuation Report made by the 4 th Defendant bore the company seal, and also whether the valuer accessed and inspected the properties or whether it was simply a “drive-by” valuation. He insisted that the auction was actually conducted outside the but also agreed that he did not produce a schedule of the people who attended the auction. He also agreed that the sale document does not mention the bank as the seller but maintained that the 2 nd Defendant who bought it at the auction was at liberty to appoint any person as his nominee, and in this case, the 2 nd named the 3 rd Defendant as such nominee. He however agreed that the bank as the seller would have had to give consent for the transfer to the nominee. He also agreed that for the purchase, an aggregate sum of Kshs 16,500,000/-was paid in 3 instalments of Kshs 4,250,000/- on 14/10/2020, Kshs 12,250,000/- on 22/10/2020, and the last one for Kshs 500,000/- but he could not tell who paid that final balance of Kshs 500,000/- made by cheque. In re-examination, he listed the respective dates when each of the respective auction attempts was made.
14. DW2 was Timothy Saruni , who introduced himself as a Registered Valuer and director of the 4 th Defendant, Advent Valuers . Also led by Mr. R.G. Mwangi , he testified that the 4 th Defendant was instructed by the 1 st Defendant to carry out a valuation of the properties, upon which he prepared the Valuation Report dated 9/10/2020, which he then produced. Under cross-examination by Mr. Sala , he stated that he received instructions on 6/10/2020 to carry out the valuation and he inspected the property on 7/10/2020. He agreed that he did not notify the Plaintiffs of the inspection as there was no duty to do so, and confirmed that the Plaintiffs did not participate in the inspection. He confirmed that he valued the properties at Kshs 30,000,000/- but he is aware that Chrisca Valuers had valued it at Kshs 42,500,000/-. He stated that appreciation and depreciation of property is a normal occurrence, and that he could not comment on the question whether property of the nature and size (0.25 acres) as those the subject of this case can attract a purchase price of Kshs 17,000,000/- within the Elgon View locality. In re-examination, he stated that the Valuation Report by Chrisca Valuers , differs from his perhaps because its timing was different from his own, and may have had an impact because the one by Chrisca Valuers was prepared during the COVID-19 period when selling properties was not easy. He also observed that it could be because of the stage of completion of the developments made in the properties since his valuation was carried out when the developments were at about 85% complete while the one by Chrisca Valuers was conducted when they were at about 75%.
15. DW3 was Silas Kiptoo Kibii , the 2 nd Defendant, who introduced himself as an Advocate. Led by his Counsel, Mr. Lagat , he adopted his Witness Statement and produced his bundle of documents. He then testified that he learnt of the public auction from a newspaper advertisement, and denied that he colluded with others to defraud the Plaintiffs of the properties, or that he had ever worked with the 1 st Defendant. He stated that he sold the property to the 3 rd Defendant which he is not related to in any way, and he is thus no longer the owner. Under cross-examination by Mr. R.G. Mwangi , he denied ever being in the 1 st Defendant’s panel of Advocates. He also insisted that he is one who paid the purchase price, and that his bid of Kshs 17,000,000/- at the auction was accepted and he was declared the highest bidder. He also maintained that he was personally present at the auction. Under cross-examination by Mr. Sala , he stated he has abandoned the prayer for eviction of the Plainti
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