Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedAppeal from Kakamega Chief Magistrate's Court Civil Suit (judgment delivered 12th July 2023 by L. Kassan, Chief Magistrate)· [2025] KEELC 4703 (KLR)

Kenya Union of Savings and Credit Cooperative Ltd & another v Wamalwa (Suing as the Legal Representative to the Estate of Wilycster Noel Nyongesa) (Environment and Land Appeal E007 of 2023) [2025] KEELC 4703 (KLR)

Environment and Land Court / High Court (Nyamira)
25 June 2025
5,369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

#

A Kenyan court cancelled a forged land discharge and declared an auction unlawful, but the buyer keeps the property because purchasers are legally protected.

What this practically means

#

Executive summary

#
This is a first appeal from the Subordinate Court (L. Kassan, CM), which had found for the plaintiff (later substituted by Joram Wamalwa after the death of Wilycster Noel Nyongesa) and granted a permanent injunction, declarations and nullification of an auction sale of Kakamega/Municipality Block 1/599. The Appellants (a chargee and auctioneer) contended the discharge of charge was forged and that the sale was lawful. The Court re-evaluated the evidence as a first appellate court. It found that the criminal proceedings (Kakamega CM Criminal Case No. 3551 of 2015) had established forgery of the discharge documents, and that the circumstances of the purported waiver (a stranger presenting a registered discharge, unreceipted payments to a personal Mpesa account, and a certified register showing the charge still in force) confirmed fraud. The Court held no fresh statutory notice under Section 90(1) was required since the 2012 notice was never withdrawn, and that the Rule 15 45-day notice was served, but found the Section 96(2) notice to sell was never issued, rendering the auction improper. However, the purchaser, not being joined and protected by statute, remains undisturbed. The appeal was allowed in part: the trial judgment was set aside and replaced with declarations that the sale was illegal, irregular and unprocedural (without affecting the purchaser), that the deceased fraudulently discharged the property, and with cancellation of the discharge entries. Each party was ordered to bear its own costs at both levels.

Key legal issues

#
01

Whether the Discharge of Charge was forged and fraudulent

Holding

Yes - the Appellants discharged the burden of proof; the Criminal Court's forgery findings, the inconsistent certificates of lease, the certified register and the incredible circumstances of the purported waiver established forgery

Reasoning

The Criminal Court found the discharge documents forged though the deceased was acquitted as maker. The Respondent's own testimony showed a stranger arriving with a registered discharge, official search and lease, unreceipted payments of KShs 200,000 to his personal Mpesa, and the certified register of 18th November 2015 confirming the charge still in force. The trial magistrate erred by focusing on the acquittal rather than on whether the discharge was forged.

p. 7
02

Whether a fresh statutory notice under Section 90(1) of the Land Act was required before the sale

Holding

No - the statutory notice of 14th May 2012 was never withdrawn and expressly reserved the chargee's rights

Reasoning

The deceased defaulted and received a statutory notice dated 14th May 2012. She never regularised the account, and the notice stated subsequent payments would not constitute waiver unless sums were paid in full. The court found no withdrawal of the notice on the record, so under Section 96(1) no fresh notice under Section 90(1) was necessary.

p. 7
03

Whether the notices under Section 96(2) of the Land Act and Rule 15 of the Auctioneers Rules were issued

Holding

The Rule 15 45-day redemption notice was issued, but the Section 96(2) notice to sell was not, vitiating the sale processes

Reasoning

The deceased's affidavit in earlier Co-operative Tribunal proceedings admitted service of notification of sale, satisfying Rule 15. However, a search of the Subordinate Court record revealed no notice to sell under Section 96(2), and the Appellants could not point to one. Following Palmy Company Limited and Nyando Enterprises, the absence of that notice vitiated the auctioneer's instructions and the subsequent sale, though the purchaser remains protected.

p. 9

Legal principles established

#
  • Fraud must be pleaded, particularised and strictly proved to a standard higher than balance of probabilities but lower than beyond reasonable doubt; the same standard applies to forgery
  • A forged discharge of charge is a nullity and cannot discharge obligations under the charge
  • Where a chargee has not withdrawn the statutory notice under Section 90(1) of the Land Act, no fresh statutory notice is required before exercising the statutory power of sale
  • Failure to issue the notice to sell under Section 96(2) of the Land Act vitiates the instructions to the auctioneer and the ensuing sale processes
  • A purchaser at an exercise of statutory power of sale is protected even where the sale is irregular, absent fraud or dishonesty of which the purchaser has notice

Court orders

#
  1. 1.A declaration that the sale by public auction on 16th April 2021 in respect of Kakamega/Municipality Block 1/599 was illegal, irregular and unprocedural
  2. 2.A declaration that the purchaser is not affected by the above declaration
  3. 3.A declaration that Wilycster Noel Nyongesa (deceased) dealt fraudulently in discharging the suit property from the charge held by the First Appellant
  4. 4.Cancellation of all entries in the register and Certificate of Lease purporting to discharge the charge
  5. 5.Each party to bear own costs of the appeal and of the proceedings before the Subordinate Court
On appeal from
Subordinate Court (Chief Magistrate's Court, Kakamega)
null
Jurisdiction invoked
First appellate jurisdiction over the Subordinate Court (appeal against judgment in a land dispute)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Union of Savings and Credit Cooperative Ltd & another v Wamalwa (Suing as the Legal Representative to the Estate of Wilycster Noel Nyongesa) (Environment and Land Appeal E007 of 2023) [2025] KEELC 4703 (KLR)", Case Analysis (2025). Appeal from Kakamega Chief Magistrate's Court Civil Suit (judgment delivered 12th July 2023 by L. Kassan, Chief Magistrate). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4703/eng@2025-06-25

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