Bachu v Cheruiyot & 6 others (Environment and Land Case 189 of 2015) [2026] KEELC 2975 (KLR)
The bottom line
#Even when a bank's land auction was legally flawed, the winning bidder keeps the land, and the aggrieved owners could only claim money damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to hear and determine this suit.
- 2.Whether the 3rd Defendant in the Counterclaim properly exercised its statutory power of sale.
- 3.Whether the prayers sought in the Further Amended Defence and Counterclaim should be granted.
- 4.Whether the prayers sought in the Further Amended Plaint should be granted.
- 5.Who should bear costs of the suit.
Key legal issues
#Whether the ELC has jurisdiction over a dispute rooted in a charge and statutory power of sale
The Court has jurisdiction because the dispute concerns title, occupation and possession of land, not tabulation of sums owing.
Applying Owners of Motor Vessel 'Lilian S' and Samuel Kamau Macharia on jurisdiction, and distinguishing Co-operative Bank v Kangethe Njuguna, the court followed P.J. Dave Flowers and Lydia Nyambura Mbugua. The dominant issues were the validity of the auction, nullification of transfer and restoration of title - land matters under Article 162(2)(b) and Section 13 of the ELC Act, not a commercial recovery of debt.
Whether the chargee properly exercised its statutory power of sale
It did not; the power of sale had not accrued because the chargee failed to prove service of the statutory notices.
Section 74(1) of the Registered Land Act (repealed) required notice in writing with three months to pay. The bank's witness admitted he could not verify whether the notification of sale was issued, produced no newspaper advertisement, and the Notification of Sale dated 5th December 1996 showed the sale on 9th January 1997 occurred after only 36 days instead of the statutory 45. Following Okanda, the burden lay on the chargee, which failed to discharge it.
Remedies for an irregular exercise of statutory power of sale
Damages only; the auction sale to the purchaser cannot be nullified.
Section 77(3) of the Registered Land Act (repealed), in pari materia with Section 99(4) of the Land Act, confines a person prejudiced by an irregular exercise of the power of sale to damages. A purchaser at public auction enjoys statutory protection even with notice of irregularity, and there is no duty on an intending purchaser at a properly advertised auction to inquire into the chargee's right to sell. The Defendants neither sought nor led evidence on damages.
Whether the Plaintiff proved entitlement to vacant possession and injunction
Yes; the Plaintiff is the registered proprietor and the Defendants admitted they would not vacate.
The Plaintiff produced the title deed issued on 6th February 2009, the charge documents, memorandum of sale, notification of sale and Land Control Board consent. The Defendants produced no documents and their sole witness admitted the land was sold for defaulted loan repayment and that he would not vacate even if given three months. Having failed to impeach the sale, they must give vacant possession, with eviction in default.
Legal principles established
#- Where a chargor alleges non-receipt of the statutory notice, the burden is on the chargee to prove that the notice was issued; if unproved, the chargee's power of sale has not accrued.
- A bona fide purchaser at a public auction in exercise of a chargee's statutory power of sale is protected notwithstanding irregularities; the chargor's remedy is in damages only.
- A trust claim must be established by cogent and compelling evidence; absent such evidence the court cannot make a finding of trust.
- The Environment and Land Court has jurisdiction over disputes that in substance concern title, occupation and possession of land even where they arise from a charge and statutory sale, provided accounts/recovery of debt is not the dominant issue.
Court orders
#- 1.The Defendants and any other persons claiming through them shall vacate land parcel No. Kericho/Roret/646 within 90 (ninety) Days of the date hereof.
- 2.In default of vacation, an Eviction Order shall issue.
- 3.A permanent injunction restraining the Defendants and any other persons claiming through them from interfering with the Plaintiff's occupation, use, possession, and/or quiet enjoyment of land parcel No. Kericho/Roret/646.
- 4.The Defendants' Counterclaim is dismissed with costs.
- 5.The Plaintiff shall have costs of the suit.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act
Relief refused
#Plaintiff's claim for mesne profits
Mesne profits are special damages which must be specifically pleaded and proved; none was pleaded or proved.
Defendants' prayer for declaration that the auction and transfer were null and void
A purchaser at a public auction is protected even where the chargee's exercise of statutory power of sale was irregular; the remedy lies in damages only.
Defendants' prayer for declaration of trust and termination of the said trust
No evidence was led to establish the trust.
Defendants' prayer for permanent injunction
It fails in light of the court's other findings.
Costs
The Defendants' Counterclaim is dismissed with costs; the Plaintiff shall have costs of the suit.
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.
The Defendants and any other persons claiming through them shall vacate land parcel No. Kericho/Roret/646 within 90 (ninety) Days of the date hereof.
The Defendants Counterclaim is hereby dismissed with costs.
The Plaintifi shall have costs of the suit.
It follows that the 3rd Defendant in the Counterclaim's power of sale had not accrued at the time the suit parcel of land was sold and therefore it did not properly exercise its statutory power of sale.
That once the Chargor alleges non-receipt of the statutory notice it is for the Chargee to prove that such notice was infact (sic) sent.
a purchaser at a public auction is protected and a person aggrieved with an irregular exercise of statutory power of sale shall only be entitled to an award of damages.
The Plaintifis did not specifically plead and prove mesne profits. Therefore, this prayer fails.
Issues in the judgment
#The judgment gives conflicting dates for the public auction - the introductory paragraphs and some evidence state February while the rest of the judgment and the documents state 9th January 1997.
The judgment is internally inconsistent on whether a 45-day or 90-day/three-month notice governed, describing the Section 74 notice as a three-month notice while parties plead a 45-day notification of sale period.
The disposition introduces orders with 'I find and order as follows' and lists order (b) as an eviction order in default, but the list omits the mesne profits/vesting order which the court expressly refused - the disposition itself is consistent, though the court earlier described prayer (a) as including mesne profits.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bachu v Cheruiyot & 6 others (Environment and Land Case 189 of 2015) [2026] KEELC 2975 (KLR)", Case Analysis (2026). Kericho ELC (formerly Kericho HCC No. 39 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2975/eng@2026-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.