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D N M v. M K , Ghadially & Co. Advocates, M W G , Gitonga & Co. Auctioneers&Kenya; Commercial Bank Ltd

(2014) JELR 103008 (CA)

Court of Appeal  •  Civil Appeal 194 of 2011  •  19 Mar 2014  •  Kenya

Coram
Alnashir Ramazanali Magan Visram, Martha Karambu Koome, James Otieno Odek

Judgement

JUDGMENT OF THE COURT

The 1st respondent, (Mungania Kungania), was a customer of Kenya Commercial Bank, the 5th respondent. He borrowed money from the 5th respondent and executed a charge to secure the loan over his Land Parcel No. [particulars withheld], (hereinafter referred to as the suit or charged property). The 1st respondent defaulted in the repayment of the loan whereupon the 5th respondent instructed its lawyers, the 2nd respondent, to sell by public auction the charged property. The public auction was conducted on 5th May, 1974 ,by the 4th respondent and the 3rd respondent bought the suit property. Subsequently, the 3rd respondent transferred the suit property to the appellant. It is not disputed that continuously from 1974 to date; the 1st respondent has been in occupation of the suit property.

The 1st respondent filed suit against the 5th respondent and all other respondents claiming that the statutory notice of sale issued by the 2nd respondent was fatally defective as it p…

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