Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCourt of Appeal at Nairobi Civil Appeal (not stated in judgment text; first appeal from Machakos ELC No. 167 of 2008)

Njoru & another v Equity Bank Limited & another (Civil Appeal 317 of 2018) [2025] KECA 86 (KLR)

Court of Appeal of Kenya
24 January 2025
1,896 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal upheld a Kshs. 3 million award against Equity Bank for auctioning land too cheaply, because the appellant's valuation omitted the forced sale value.

What this practically means

#

Executive summary

#
This first appeal before a three-judge bench of the Court of Appeal at Nairobi (Kairu, Tuiyott and Lesiit, JJA) raised a single question of law: whether the Court should interfere with the general damages award of Kshs. 3,000,000 made by the Environment and Land Court at Machakos (Christine Ochieng, J, on 13th March 2018) in favour of Grace Wangui Njoru (since deceased) against Equity Bank Limited for sale of land parcel Ngong/Ngong/21469 Upper Matasia at an undervalue in a public auction on 6th July 2007, in exercise of the Bank's statutory power of sale under section 74(2)(b) of the repealed Registered Land Act. The auctioned property was bought by the second respondent, Aziz Atilala, for Kshs. 4,500,000, while the chargor's valuer had assessed market value at Kshs. 9,850,000. After both original appellants died, their son, John Murage Ndegwa, prosecuted the appeal as interested party, seeking damages of Kshs. 5,350,000 being the difference between the valuation and the sale price. The respondents did not appear. The Court applied the Butt v Khan standard limiting appellate interference with damages, and held that the valuation relied on did not state a forced sale value, so it could not establish what the best price reasonably obtainable on the auction date would have been; absent that, there was no basis to disturb the award. The Court reviewed the chargee's statutory duties under section 77(1) of the Registered Land Act and section 97 of the Land Act, which codified the duty to obtain the best price and requires a forced sale valuation. The appeal was dismissed with no order as to costs. The ELC decision stands affirmed.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court should interfere with the award of general damages of Kshs. 3,000,000 made by the ELC for sale of the suit property at an undervalue

Key legal issues

#
01

Interference with the trial court's award of general damages for sale at an undervalue

Holding

The appeal was dismissed; the award of Kshs. 3,000,000 was not shown to be inordinately low or an entirely erroneous estimate

Reasoning

The court applied the Butt v Khan standard, under which an appellate court does not disturb damages unless the figure is inordinately high or low or the judge misapprehended the evidence or principles. The interested party's proposed figure of Kshs. 5,350,000 depended on a valuation that fixed market price but not forced sale value, so it did not show what the best price obtainable at the auction would have been. Without that, there was no basis to find the award manifestly low.

p. 2
02

Duty of a chargee exercising statutory power of sale and the role of forced sale valuation

Holding

Section 77(1) of the repealed Registered Land Act required the chargee to act in good faith and have regard to the chargor's interests; section 97 of the Land Act codified the duty to obtain the best price reasonably obtainable and requires a forced sale valuation before sale

Reasoning

The court traced the chargee's duties through section 77(1) of the repealed Registered Land Act and Marteve Guest House, summarizing the mortgagee's duties to act in good faith, obtain the best price, avoid fraud and impropriety. Section 97 of the Land Act codified this, requiring a forced sale valuation and deeming sales at twenty-five per centum or below market value presumptively in breach. But the claimant's valuation gave only market value, not forced sale value.

p. 3

Legal principles established

#
  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence in some material respect
  • A chargee exercising a statutory power of sale owes a duty to obtain the best price reasonably obtainable at the time of sale, and a sale at twenty-five per centum or below market value raises a rebuttable presumption of breach
  • A valuation that does not state the forced sale value cannot assist a court assessing whether an award for sale at an undervalue is manifestly low

Court orders

#
  1. 1.Appeal dismissed
  2. 2.No order as to costs (respondents did not participate in the appeal)

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court, Machakos
Machakos High Court Civil Suit No. 167 of 2008 (later Machakos ELC No. 167 of 2008)
Jurisdiction invoked
First appeal to the Court of Appeal (the judgment does not expressly cite the constitutional/statutory provision; it is a first appeal under the Court of Appeal's appellate jurisdiction, Article 164 of the Constitution not being quoted in the judgment)

Relief refused

#

Increase of general damages from Kshs. 3,000,000 to Kshs. 5,350,000 (difference between the chargor's valuation and the sale price)

The valuation relied on did not state a forced sale value, so it could not show the best price reasonably obtainable on the date of auction or that the award was manifestly low

p. 4

Costs

No order as to costs, as the respondents did not participate in the appeal

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.

An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
p. 2Standard for appellate interference with damages
The reserve price need not be the market price but must be the best price obtainable at date of the auction.
p. 3Reserve price in exercise of statutory power of sale
A chargee is expected to obtain the best price reasonably obtainable at the time of sale and it being expressly provided that a price of below 75 per centum of the market price is not acceptable.
p. 3Chargee's duty under section 97 of the Land Act
Ultimately, the appeal has no merit and is for dismissal. It is hereby dismissed but with no order as to costs as the respondents did not participate in the appeal.
p. 4Final orders / disposition

Issues in the judgment

#
minor

The judgment records the auction as occurring on 6th July 2007 in paragraph 2 but later refers to the sale as happening on 24th April 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Njoru & another v Equity Bank Limited & another (Civil Appeal 317 of 2018) [2025] KECA 86 (KLR)", Case Analysis (2025). Court of Appeal at Nairobi Civil Appeal (not stated in judgment text; first appeal from Machakos ELC No. 167 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/86/eng@2025-01-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.