Ndungu v Wachira & 2 others (Environment and Land Case 41 of 2018) [2025] KEELC 7185 (KLR)
The bottom line
#A Kenyan court cancelled an auctioned land title because the bank never properly served statutory notices or proved the owner signed the charge.
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 Plaintiff executed the charge dated 25th January 2018 over the suit property
- 2.Whether the charge was illegally, fraudulently and unprocedurally created and is therefore void
- 3.Whether the statutory notices preceding the exercise of the statutory power of sale were served on the Plaintiff
- 4.Whether the auction and subsequent transfer to the 3rd Defendant passed good title to the 3rd Defendant as a bona fide purchaser
Key legal issues
#Whether the Plaintiff executed the charge
The charge was not executed by the Plaintiff; he produced uncontroverted immigration evidence showing he was out of Kenya from 26/02/2014 to 25/12/2017
The Plaintiff produced exit stamps showing he was out of the country during the period the charge was allegedly made. This evidence was not controverted. Once he discharged the evidential burden, the 1st and 2nd Defendants had to prove execution, but they did not; no Land Control Board consent or clearance certificate was produced.
Whether the statutory power of sale validly crystallised
The power of sale never crystallised because service of the statutory notices was not proved - no certificate of postage, affidavit of service or auctioneer's certificate was produced
Although the 2nd Defendant alleged notices were sent to the Plaintiff's postal address, it produced no certificate of postage. DW3 admitted the owner was never personally contacted and that he did not sign the statutory power of sale. Following s.74 RLA and ss.90 and 96 of the Land Act, non-service is a fundamental breach rendering the sale null and void.
Whether the 3rd Defendant is a bona fide purchaser for value
No. The auction emanated from an illegal and void transaction, so the 3rd Defendant purchased 'hewa' (air) and his title is vitiated by the same nullity
The charge being a nullity, there was nothing capable of transmission. The Court of Appeal authority in Stephen Boro Gitiha establishes that sales not preceded by statutory notice are null and void and incapable of passing effective title, and innocence of purchase is not curative of the fundamental defect.
Whether fraud by the Defendants was proved
Fraud was proved in so far as the charge process was shown to be illegal and fraudulent; the Plaintiff's evidence that the charge was created without his signature, consent or presence was unrebutted
Once the Plaintiff showed he was out of the country and did not sign, the evidential burden shifted to the Defendants. No documents supported the charge process, no Land Control Board consent was produced, so the evidence of illegality and fraud was unrebutted and strictly proved.
Legal principles established
#- Non-service of the statutory notice is a fundamental breach that derogates from the chargor's equity of redemption; without valid statutory notice the power of sale does not crystallise and any sale is a nullity incapable of passing title
- Where a chargor alleges he did not receive statutory notices, the evidential burden shifts to the chargee to demonstrate prima facie that the notices were served
- A purchaser cannot rely on the bona fide purchaser doctrine where the underlying charge/transaction is a nullity; title founded on nullity is itself null and void
- Fraud must be pleaded and strictly proved to a standard higher than the balance of probabilities but lower than beyond reasonable doubt
Court orders
#- 1.A declaration that the charge dated 25th January 2018 created over Ruiru/Ruiru East Block 2/8048 is void as it was created illegally, irregularly and unprocedurally
- 2.An order of permanent injunction against the 2nd and 3rd Defendants restraining them from alienating, selling, advertising, transferring, laying claim to, trespassing onto or otherwise dealing with or interfering with the Plaintiff's occupation and title to Ruiru/Ruiru East Block 2/8048
- 3.Cancellation of the title for Ruiru/Ruiru East Block 2/8048 in the name of Samuel Macharia Ndungu and reversion to the Plaintiff James Kamau Ndung'u
- 4.Costs of the suit awarded to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land parcel Ruiru/Ruiru East Block 2/8048
Relief refused
#3rd Defendant's claim for damages, refund of purchase price and loss of rental income against the 2nd Defendant
The claim was not made by way of a counterclaim; the Court left the 3rd Defendant free to pursue it separately
Costs
Costs of the suit are awarded to the Plaintiff
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.
A declaration is hereby made that the charge dated 25th January, 2018 created over Ruiru/ Ruiru East Block 2/8048 is void as it was created illegally, irregularly and unprocedurally.
An order is hereby issued for cancellation of the title for land parcel No. RUIRU/RUIRU EAST BLOCK 2/8048 in the name of Samuel Macharia Ndungu and to revert the same in the Plaintifi's name James Kamau Ndung'u.
Auction sales not preceded by the requisite statutory notice were not mere irregularities. They were unlawful, null and void, and incapable of passing efiective and proper title to the purchasers, as illegality cannot engender legal title.
The lawful and legitimate owner of the suit property is the Plaintifi.
Issues in the judgment
#Judgment inconsistently dates the charge - the Plaint is against a charge dated 25th January 2018 while the 2nd Defendant pleaded execution on 21/10/2015 and the Court at one point refers to a charge 'dated 21/10/2018'
The 1st Defendant's name appears inconsistently - the offer letter is said to have been made to the 1st Defendant 'one Nicholas Wachira' while the purchaser/3rd Defendant is Samuel Macharia Ndungu
Judgment does not state the suit file number of the case
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu v Wachira & 2 others (Environment and Land Case 41 of 2018) [2025] KEELC 7185 (KLR)", Case Analysis (2025). Not stated in judgment (Environment and Land Court suit, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7185/eng@2025-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.