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Kenya Commercial Bank Ltd v. Jeremiah Matoke & another

(2009) JELR 100076 (CA)

Court of Appeal  •  Civil Appeal 227 of 2002  •  4 Dec 2009  •  Kenya

Coram
Philip Kiptoo Tunoi, Philip Nyamu Waki, John walter Onyango Otieno

Judgement

JUDGMENT OF THE COURT

This is, indeed, a very short appeal. The gravamen of it is whether or not, this Court should interfere with the exercise of a discretion of the learned Judge, Osiemo J. by which he allowed the appellant, Kenya Commercial Bank Ltd, to proceed and exercise its statutory power of sale over a mortgaged land being L.R. No. 7847/4 (the suit property); and at the same time, ordered that the 1st respondent, Jeremiah Matoke, should have quiet and uninterrupted occupation of a portion thereof measuring 10 acres delineated and marked as L.R. No. 7847/7 until the hearing of the suit. The brief facts so far as may be relevant to this appeal may be stated as follows. In or about September 1990 the 1st respondent entered into an agreement with the 2nd respondent, William Wilhite Anyenda, to purchase from the latter 10 acres out of the 2nd respondent’s 99.5 acres comprised in the suit property. Immediately after the execution of the sale agreement, the 1st respondent took posses…

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