[2013] KEHC 4022 (KLR)
The court found that the applicant had obtained a valid tribunal order authorizing the sale of the suit properties due to the respondent's default on loan repayment. The applicant had complied with the necessary procedures and was unable to complete the transfer of the properties solely because the respondent...
Source-derived case information.
- Citation
- [2013] KEHC 4022 (KLR)
- Parties
- Applicant: Elimu Sacco Society Limited; Respondent: Paul W. Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 368 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Adopt Tribunal Order and Execute Transfer Documents
- Outcome
- Application allowed. Orders granted as prayed.
- Judges
- DW Mbuteti
- Legal Topics
- Enforcement of Tribunal Awards, Execution of Decrees, Transfer of Land, Default on Loans
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elimu Sacco Society Limited
Applicant
Paul W. Mwangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Adopt Tribunal Order and Execute Transfer Documents
Legal Issues
- 1 Whether the order of the Cooperative Tribunal can be adopted as an order of the High Court for enforcement purposes.
- 2 Whether the Deputy Registrar can be directed to execute transfer documents on behalf of the respondent who has defaulted.
Ratio Decidendi
The court found that the applicant had obtained a valid tribunal order authorizing the sale of the suit properties due to the respondent's default on loan repayment. The applicant had complied with the necessary procedures and was unable to complete the transfer of the properties solely because the respondent refused or neglected to execute the required documents. The law empowers the court to adopt the tribunal's order as its own and to direct the Deputy Registrar to execute the transfer documents in place of the respondent. The respondent, having been served, failed to oppose the application or appear. The court was satisfied that the application was meritorious and granted the orders...
Court Disposition
Application allowed. Orders granted as prayed.
Orders
- The order of the Cooperative Tribunal issued on 13th August 2009 and amended on 15th August 2009 is adopted as an order of the High Court.
- The Deputy Registrar is directed to execute the transfer documents on behalf of the respondent.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Miscellaneous Civil Case 368 of 2012 [if gte mso 9]><![endif]
ELIMU SACCO SOCIETY LIMITED……....…….........…………..APPLICANT
VERSUS
PAUL W. MWANGI.............................……….........…....……..RESPONDENT
R U L I N G
1. The Applicant seeks by notice of motion dated 27th June 2012 brought undersection 79(3)of theCooperatives Societies Actandsections 3A, 48 and 98of theCivil Procedure Actorders -
(a)That the court be pleased to adopt the order of the Cooperative Tribunal issued on 13th August 2009 and amended on 15th August 2009 as an order of the Court.
(b)That the court be pleased to direct the Deputy Registrar to execute the transfer documents on behalf of the Respondent.
2. The application is based on the grounds that -
(i)On 13th August 2009, the Cooperatives Tribunal issued orders authorizing the Applicant to sell the suit properties and the proceeds of the sale given to the applicant.
(ii)The applicant has now found ready buyers for the said parcels of land and deposits have already been paid.
(iii)The said transactions are in the transfer stage but the applicant cannot transfer the said parcels to the intended purchasers.
(iii)The applicant has been advised by officers at the land registry that as the sale is by virtue of a court order the transfers must be signed by the Registrar or Deputy Registrar of the High Court.
3. There is a supporting affidavit sworn on 9th July 2012 by Julie Obel, counsel for the Applicant. It is deponed that suit was instituted in the Co-operative Societies Tribunal after the Respondent defaulted in payment of loans advanced to him by the Applicant; that judgment was entered in favour of the Applicant when the Respondent failed to enter appearance; and that a decree has since been issued.
4. Section 9(3) of the Co-operative Societies Act states that:-
"(3) Where the Tribunal enters judgment in terms of the award together with costs, it shall issue a decree which shall be enforceable as a decree of a court."
3. Section 98 of the Civil Procedure Act provides:
"Where any person neglects or refuses to comply with a decree or order directing him to execute any conveyance, contract or other document, or to endorse any negotiable instrument the court may, on such terms and conditions, if any as it may determine, order the conveyance contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the court may nominate for that purpose, and a conveyance, contract, document or instrument so executed or endorsed shall operate and be for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it."
4. The Respondent was duly served with this application. He did not file any papers in response; nor did he appear at the hearing thereof.
5. Having considered the application, I am satisfied that it has merit and should be allowed. The application is granted in terms of prayers 2 and 3. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF ARPIL 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 19TH DAY OF APRIL 2013
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