[2021] KEELC 2600 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MILIMANI

ELC MISC CASE NO. 225 OF 2018

GEOFRREY KAHARIRI .......................................APPLICANT

-VERSUS-

LATIFA AHMED ALEY...............................1ST RESPONDENT

THE LAND REGISTRAR, NAIROBI.......2ND RESPONDENT

RULING

1. This is a Ruling in respect of a Notice of Motion dated 18th December 2018 in which the Applicant seeks the following orders: -

1. That this Honourable Court be pleased to issue an Order compelling the 2nd Respondent to remove the caveat placed on the parcel of land known as Land Reference No. 37/268/16 Nairobi on 12th March 2007, by the 1st Respondent.

2. That this Honourable Court be pleased to issue an order compelling the 1st Respondent to return the Title for the parcel of land known as Land Reference No.37/268/16 Nairobi to the Applicant.

3. That alternative to prayer 2 herein, this Honourable Court be pleased to issue an order of a New Title for Land Reference No.37/268/16 Nairobi in the Applicant’s name.

4. That the costs of this Application be borne by the 1st Respondent.

3. The Applicant and the 1st Respondent were married but they divorced in the year 2005. Following the divorce, the 1st Respondent caused a caveat to be registered against LR.No. 37/268/16 which is registered in the name of Applicant.

3. The Applicant and the 1st Respondent entered into an agreement dated 18th September 2008 in which they agreed to share the properties they held including the matrimonial home. The 1st Respondent however noticed that the agreement had errors in that the parties were wrongly described in the agreement. This prompted the 1st Respondent to file ELC No.628 of 2010 where she sought rectification of the agreement which had been signed.

4. The 1st Respondent did not prosecute the case which was dismissed for want of prosecution. It is after the dismissal of the case that the Applicant wrote to the 2nd Respondent seeking removal of the caveat. The 2nd Respondent did not act on the request. The Applicant also wrote to the Advocates of the 1st Respondent seeking removal of the caution but they too did not act. This is what made the Applicant to file this application.

5. The Applicant contends that he is the sole registered owner of the suit property and that the caution should be removed so that he can utilize the property by way of charging it or sale it. The Applicant argues that the 1st Respondent is the one who is holding the original title to the suit property and that his efforts to have the title back have proved futile.

6. The 1st Respondent opposed the Applicant’s application based on a replying affidavit sworn on 3rd February 2020. The 1st Respondent contends that the suit property is matrimonial property in which she has a stake. The 1st Respondent further contends that the Applicant has shown intention of selling the property to defeat her interest. She argues that they had signed an agreement which gave her a 50% interest in the property but that the Applicant has failed to disclose this fact. The 1st Respondent contends that the mere dismissal of the suit which she filed did not take away her interest in the suit property.

7. I have carefully considered the Applicant’s application as well as the opposition to the same by the 1st Respondent. I have also considered the submissions by the parties. There is no doubt that the suit property was acquired by the Applicant before his marriage to the 1st Respondent. The suit property was acquired in 1972 and the marriage took place in 1973. The issues which emerge for determination are firstly whether the caveat should be removed and secondly, whether the land Registrar should be compelled to issue a fresh title in favour of the Applicant.

8. The 1st Respondent placed a caveat in the suit property claiming interest as a wife. This was because the Applicant had expressed his interest of disposing of the suit property. Though the Applicant and the 1st Respondent are now divorced, the 1st Respondent has a stake in that property. The Applicant and the 1st Respondent tried to share the properties which they had vide an agreement dated 18th September 2008. This agreement was however found to have contained errors which the 1st Respondent sought to rectify through ELC No.628 of 2010. This case was however dismissed for want of prosecution.

9. Notwithstanding the dismissal of the suit and the agreement which remain with the errors, the fact remains that the 1st Respondent has a stake in the suit property. It may well be that the property was acquired before the marriage but the 1st Respondent who still resides in the suit property may have contributed to improvement of the same which gives her a stake in the property. Her stake can be ascertained in the Family Division of the High Court if the parties herein will not agree on the division as they had intended to do through the agreement of 18th September 2008.

10. The Applicant has clearly shown that he wants to sell the suit property. This is clear from the letter dated 3rd October 2018 which is annexed to the supporting affidavit. By signing the agreement of 18th September 2008, the Applicant confirmed that the 1st Respondent indeed has a stake in the suit property. The only way the 1st Respondent can secure her interest in the suit property is by maintaining the caveat until such time the when the parties herein agree on the division or the issue is determined in a court with jurisdiction to adjudicate over matrimonial issues.

11. If the Applicant is desirous of having a new title, he should follow the right procedures for a replacement. The 1st Respondent has denied that she is the one who is in possession of the title. There is therefore no basis upon which this Court can order the 1st Respondent to give what she does not have or compel the Land Registrar to issue a fresh title. I therefore find, no merit in this application which is hereby dismissed with costs to the 1st Respondent.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 10TH DAY OF JUNE 2021

E. O. OBAGA

JUDGE

In the Virtual presence of:-

M/s Githinji for Applicant

Mr Apedu for Mr Oonge for 1st Respondent

Court Assistant: Okumu

E. O. OBAGA

JUDGE