[2014] KEHC 1329 (KLR)
The court found that the 1st Defendant had no valid ground to resist enforcement of the judgment, as its application for leave to appeal to the Supreme Court had been withdrawn. The court held that the Plaintiff was entitled to have the transfers executed and all necessary documents delivered to effect registration...
Source-derived case information.
- Citation
- [2014] KEHC 1329 (KLR)
- Parties
- Plaintiff: Agam Investments Limited; Defendant: Voi Development Company Ltd; Defendant: Chris Cannan; Defendant: John Kell Campbell
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 308 of 2007
- Procedural Posture
- Civil Suit / Post Judgment Enforcement Application
- Outcome
- Application allowed; orders granted as prayed.
- Judges
- MM Kasango
- Legal Topics
- Enforcement of Judgments, Transfer of Land, Execution Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agam Investments Limited
Plaintiff
Voi Development Company Ltd
Defendant
Chris Cannan
Defendant
John Kell Campbell
Defendant
Procedural Posture
Civil Suit / Post Judgment Enforcement Application
Legal Issues
- 1 Whether the 1st Defendant should be compelled to execute transfers and deliver documents to effect the judgment in favour of the Plaintiff.
- 2 Whether the 1st Defendant's opposition based on a pending appeal to the Supreme Court is valid given the withdrawal of the application for leave to appeal.
- 3 What enforcement measures are appropriate if the 1st Defendant fails to comply with the court's orders.
Ratio Decidendi
The court found that the 1st Defendant had no valid ground to resist enforcement of the judgment, as its application for leave to appeal to the Supreme Court had been withdrawn. The court held that the Plaintiff was entitled to have the transfers executed and all necessary documents delivered to effect registration of the properties in its favour. In the event of non-compliance, the court authorized the Deputy Registrar to execute the transfers and ordered attachment and sequestration of the 1st Defendant's property, as well as imprisonment of its directors, to ensure compliance. The Plaintiff was awarded costs of the application.
Court Disposition
Application allowed; orders granted as prayed.
Orders
- The 1st Defendant is compelled to execute transfers in triplicate for LR Nos. 15031/41, 15031/42, 15031/118, 15031/119, 15031/120, 15031/123 and 15031/124 in favour of the Plaintiff and deliver all necessary documents to the Plaintiff's Advocates.
- In default, the Deputy Registrar is authorized to execute the transfers and such transfers shall be acted upon by the Land Registrar for registration.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 308 OF 2007
AGAM INVESTMENTS LIMITED …...............................PLAINTIFF/DECREE HOLDER
-V E R S U S-
VOI DEVELOPMENT COMPANY LTD ………….…….........…….… 1ST DEFENDANT
CHRIS CANNAN …………………………………………….…….…. 2ND DEFENDANT
JOHN KELL CAMPBELL ………………………………………....… 3RD DEFENDANT
RULING
The Court is requested by Plaintiff’s Notice of Motion dated 27th August 2014 to give effect to the judgment of this Court of 11th March 2011. By that Judgment this Court ordered the 1st Defendant to transfer and register Plot Numbers LR Nos. 15031/41, 15031/42, 15031/118, 15031/119, 15031/120, 15031/123 and 15031/124[the properties] in favour of the Plaintiff. It is that order in that judgment Plaintiff seeks to be effected.
Plaintiff by that Notice of Motion seeks that this Court do compel 1st Defendant to execute transfers in favour of Plaintiff of the properties, delivery to Plaintiff’s Advocates those executed transfers alongside with all other necessary documents which will enable those transfers to be registered.
This Court judgment of 11th March 2011 was appealed against by the Defendant and the Court of Appeal by its judgment of 7th February 2014 dismissed the appeal.
The 1st Defendant in its opposition to the application deponed that the orders sought were premature because 1st Defendant desired to appeal to the Supreme Court and in that regard filed an application to the Court of Appeal for a Certificate to be issued pursuant to Article 163(4) (b) of the Constitution.
That deposition by 1st Defendant was disproved by Plaintiff’s Learned Counsel’s further affidavit whereby he annexed an extracted order of the Court of Appeal of 17th June 2014 showing 1st Defendant withdrew the application for leave to file an appeal to the Supreme Court. In my view the 1st Defendant having withdrawn that application there can be no other ground for denying the Plaintiff the prayers it seeks. It is for that reason the Plaintiff will be granted orders sought.
In conclusion therefore I do grant orders as follows:
The 1st Defendant/Judgment Debtor is hereby compelled to execute Transfers in triplicate for the Transfer of the suit premises, LR. Nos. 15031/41, 15031/42, 15031/118, 15031/119, 15031/120, 15031/123 and 15031/124 in favour of the Plaintiff/Decree Holder and to deliver to the Plaintiff/Decree Holder’s Advocates those duly executed Transfers, the Original Deed Plans for Plot Nos. LR. Nos. 15031/123 and 15031/24, the Judgment Debtor’s copy of PIN Certificate, the colour photographs of the 1st Defendant’s 2 Directors as well as the PIN Certificates for any of the 1st Defendant’s 2 Directors together with the original Grant registered as CR No. 13016/1 for purposes of registering the Transfer. In default the Deputy Registrar of this Court is hereby authorized and directed to execute the Transfers to transfer to the Plaintiff the said properties together and further the Court order that such transfers by the Deputy Registrar be effective and shall be acted upon by the Land Registrar for purposes of registering those Transfers.
Should the 1st Defendant/Judgment Debtor refuse to release the original Grant No. C.R. NO. 13016/1 and to execute the Transfer with all the documents necessary to register those Transfers the 1st Defendant’s/Judgment Debtor’s entire property comprised in Grant No. C.R. 13016/1 measuring 8369 acres shall be attached and sequestered for so long as it will take the 1st Defendant to comply and further an order is hereby made for the arrest and imprisonment of the 1st Defendant’s Directors including Mr. Eliud Timothy Mwamunga for a term of six (6) months at the Shimo La Tewa Prison Mombasa or until the 1st Defendant complies with the order issued herein.
The Plaintiff is awarded costs of the Notice of Motion dated 27th August 2014.
DATED and DELIVERED at MOMBASA this 4TH day of DECEMBER, 2014.
MARY KASANGO
JUDGE