Attain Advisory Consultants Limited v Nairobi City County, Mumtaz Hawa D/O AbdulRehman Mohidin Hawa, Amina Hawa D/O Abdul Rehman Mohidin Hawa & Mohidin S/O Abdul Rehman Mohidin Hawa [2019] KECA 110 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that buying property at a flawed court auction gives no ownership rights—only a refund of the purchase price.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred in adopting the consent order as an order of the court when the appellant was not a party to or signatory of the consent
- 2.Whether the consent order was adopted in violation of order 25 rule 5 of the Civil Procedure Rules and the law of contract
- 3.Whether the adoption of the consent order violated the appellant's right to a fair hearing and rules of natural justice
- 4.Whether the court could set aside a regular final judgment and the sale in execution where the underlying proceedings and sale were a nullity
- 5.Whether the appellant was a bona fide purchaser for value without notice of the defect in the proceedings
Key legal issues
#Adoption of a consent order to which an affected party was not privy
The trial judge properly adopted the consent order because it resolved proceedings and a sale that were themselves nullities; the appellant's non-consent did not invalidate the adoption.
Order 25 rule 5(1) CPR governs recording of compromises, but the court's inherent jurisdiction under section 3A of the Civil Procedure Act and its power under Order 22 Rule 75 to set aside sales for irregularity or fraud were engaged. The consent was between the decree holder and the 2nd to 4th respondents; the appellant's rights as purchaser flowed from a decree and sale that were nullities. A court of justice was duty-bound to reject the objection and set aside the decree and execution.
Nullity of proceedings against a deceased person and ex parte retroactive amendment of decrees and vesting orders
Six cumulative acts of nullity - suit against a deceased person, sale of co-owners' shares not joined, retroactive amendment of the decree and vesting order after the sale, superimposition of non-judgment-debtors, and ex parte amendments without hearing - rendered the proceedings and sale void and constituted arbitrary deprivation of property.
The court enumerated each defect: the suit and decree against Habiba, who died on 5th December 2010, was a nullity; the 2nd to 4th respondents were co-proprietors never joined or heard; the decree and vesting order were amended ex parte and retrospectively after the sale. Cumulatively these acts deprived the court of jurisdiction and amounted to arbitrary deprivation of the co-owners' property under Article 40.
Court's power to set aside irregular judgments and sales on its own motion
An irregular default judgment is set aside ex debito justitiae as a matter of right; the court need not be moved by any party and may act on its own motion once the irregularity comes to its notice.
Following James Kanyiita Nderitu v Marios Philotas Ghikas and Joseph Njenga Njoroge v Kabiri Mbiti, the court held that the procedure by which the court is moved is unimportant where the judgment is irregular. The paramount function of a court is to do substantial justice in a procedurally fair manner, a constitutional principle under Articles 159(2)(d) and (e).
Legal principles established
#- Proceedings against a deceased person are a nullity, and an irregular default judgment may be set aside ex debito justitiae even without an application by a party
- There can be no correction or amendment of execution after a decree has been executed, and no proceedings can lie against a dead person
- Property rights under Article 40 do not extend to unlawfully acquired property, and a court may set aside a sale in execution notwithstanding a purchaser's claim to be a purchaser for value without notice
- A purchaser is entitled to refund of the purchase price where a sale of immovable property in execution is set aside
Court orders
#- 1.The appeal is dismissed with costs to the 2nd, 3rd and 4th respondents
- 2.The 1st respondent is not entitled to costs as it did not take part in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court (High Court)
- ELC Misc. Cause No. 144 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court under Article 164 of the Constitution; appeal against ruling adopting a consent order
Relief refused
#Setting aside of the ELC ruling adopting the consent order and rectification of the Register
The appeal had no merit; the underlying proceedings, decree and sale were nullities which the trial court was duty-bound to set aside
Appellant's claim to protection as a bona fide purchaser for value without notice
The court retains control of its proceedings and may set aside a sale in execution; a nullity confers no rights
Costs
Appeal dismissed with costs to the 2nd, 3rd and 4th respondents; the 1st respondent, having not taken part in the appeal, is not entitled to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the foregoing reasons, the appeal has no merit and is accordingly dismissed with costs to the 2 nd, 3rd and 4th respondents. The 1st respondent did not take part in the appeal and is not entitled to costs. It is so ordered.
Firstly, the suit and decree against Habiba who was deceased was a nullity. Secondly, the sale of the entire suit land including the shares of the 2 nd, 3rd and 4th respondents who were not parties to the suit was a nullity.
In such a situation the default judgment is set aside ex debito justitiae as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion.
There can never be a correction or amendment of the execution after a decree had been executed and realized. The other point is that there can never be any proceedings against a dead person.
The contention that the appellant was a purchaser for value without notice of defect in the proceedings is of no avail as court has control of its proceedings and has power to set aside a sale in execution of a decree.
The paramount function of a court of law is to do substantial justice to the parties in a procedurally fair manner. That is not only a legal policy but also a constitutional principle.
Issues in the judgment
#The judgment records Habiba's date of death inconsistently - the certificate of death indicates 5th December 2010, while paragraph [10] states she 'had long died on 5 th October 2010'
The judgment inconsistently dates the ex parte application in the City Court as filed in Suit No. 7 of 2017 when the suit number throughout is Civil Suit No. 7 of 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attain Advisory Consultants Limited v Nairobi City County, Mumtaz Hawa D/O AbdulRehman Mohidin Hawa, Amina Hawa D/O Abdul Rehman Mohidin Hawa & Mohidin S/O Abdul Rehman Mohidin Hawa [2019] KECA 110 (KLR)", Case Analysis (2019). Civil Appeal No. 94 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/110/eng@2019-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.