[1998] KEHC 206 (KLR)
The court declined to record the consent order as requested because the proposed consent was inconsistent with the prayers in the plaint and the Notice of Motion, making execution problematic. Furthermore, the plaintiff's claim to ownership was not sufficiently established, as the certificate of title relied upon...
Source-derived case information.
- Citation
- [1998] KEHC 206 (KLR)
- Parties
- Plaintiff: Dandora Housing Schemes Limited; Defendant: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 3250 of 1995
- Procedural Posture
- Civil Case / Ruling on Request to Record Consent Order
- Outcome
- Request to record consent order refused.
- Judges
- JM Khamoni
- Legal Topics
- Consent Orders, Vesting Orders, Title Registration, Execution of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dandora Housing Schemes Limited
Plaintiff
City Council of Nairobi
Defendant
Procedural Posture
Civil Case / Ruling on Request to Record Consent Order
Legal Issues
- 1 Whether the court should record a consent order in terms of the letter dated 26th June 1998.
- 2 Whether the proposed consent order is consistent with the pleadings and prayers in the suit.
- 3 Whether the plaintiff has proper title to the suit premises as required by law.
Ratio Decidendi
The court declined to record the consent order as requested because the proposed consent was inconsistent with the prayers in the plaint and the Notice of Motion, making execution problematic. Furthermore, the plaintiff's claim to ownership was not sufficiently established, as the certificate of title relied upon was in a different entity's name and there was no evidence that the vesting order or a transfer had been properly registered under the Regulation of Titles Act. The court found that granting the consent would result in a bad order and would not be proper in the circumstances.
Court Disposition
Request to record consent order refused.
Orders
- The court declines to record the consent order in terms of the letter dated 26th June 1998.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NUMBER 3250 OF 1995
DANDORA HOUSING SCHEMES LIMITED…………… PLAINTIFF
VERSUS
CITY COUNCIL OF NAIROBI …………………………… DEFENDANT
RULING
When I was requested by Counsel for the plaintiff, Mr. D.K. Thuo, to record a consent order in terms of the letter dated 26th June 1998 signed by the Advocates for the plaintiff and the advocates for the defendant, I asked for time to peruse the case file before recording the consent.
I have now perused the court case file and hold the opinion that it will not be proper to record a consent in the terms proposed in the consent letter dated 26th June 1998 for a number of reasons; among them the following:
First the proposed consent has the Effect of settling the suit through The Notice of Motion dated 20th February 1998 without reference to the amended plaint of same dated
Secondly prayers in the plaint, prayers in Notice of Motion and the prayers the Consent Letter are not consistent and it will be difficult to execute the prayers in the consent letter.
Thirdly, if the suit premises was vested in the Plaintiff by an order of the High Court given on 13th March 1985 in HCCC 1348 of 1972, I do not see the proprietor of a declaratory prayer for ownership of the suit and of prayer (i) in the consent letter.
Fourthly while it may be doubted whether the so called “Certificate of Title” being relied upon by the plaintiff in this suit is a proper lawful document to prove proprietorship, the said “Certificate of Title” is said to be in the name of “Kiambu Dandora Farmers Company” and not the name of the Plaintiff herein, “Dandora Housing Schemes Limited”
Fifthly, having obtained a vesting order in HCCC No.1348 of 1972 there is no evidence that that vesting order or a transfer giving effect to the vesting order was registered under the Regulation of Titles Act.
I think the court is being asked, through the consent letter dated 26th June 1998, to make a bad order and same should not be granted.
Dated this 20th July 1998 in the presence of……..
J.M. KHAMONI
JUDGE
Present:
Mr. Njoroge for Mr. Thuo for the plaintiff/applicant.
J.M. KHAMONI
JUDGE