Julius Arinaitwe v Balbir Singh Kalsi & 2 others

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. 243 of 2017** **JULIUS ARINAITWE - PLAINTIFF/APPLICANT** **VS** **BALBIR SINGH KALSI - 1ST DEFENDANT/RESPONDENT** **SATWANT SINGH KALSI - 2ND EFENDANT/RESPONDENT** **HARDEV SINGH KALSI - 3RD EFENDANT/RESPONDENT** **RULING** **[The Plaintiff's application dated 15/1/26]** 1. The application before the court dated 15/1/26 and filed by the applicant seeks the following orders; 1. That the reference to the suit property in the consent decree dated and recorded on 11/12/2027 [sic] and in all consequential orders of this court be and is hereby amended to Flat No 2 on Title Number Nairobi/Block 3/104 [originally LR No 1870/IV/82] [suit land]. 2. That the defendants whether by themselves and or their agents be and are hereby directed to deliver upto the plaintiffs and or their nominee the original lease for the property known as LR No 1870/IV/82 in Nairobi and nay other necessary completion documents necessary for the registration of the sublease dated 23/8/24 for Flat No 2 on the suit land in Nairobi in the name of the Plaintiff by the Land Registrar in accordance with Clause 2 of the consent dated 8/11/21 within 14 days from the date of this order and in default, the Land Registrar be and is hereby permitted to register the said sub lease dated 23/8/24 for Flat No 2 on Title Number Nairobi/Block 3/104 [originally LR No 1870/IV/82] in Nairobi. 2. It is averred that, vide a consent recorded by the parties on 11/12/2017, the Plaintiff became the lawful owner of the suit land. On 8/11/2021, subsequent to the previous consent order, the parties recorded another consent to the effect that the defendants will execute a sublease in favour of the Plaintiff and deliver all requisite completion documents to facilitate the registration of a transfer or sublease of Flat No 2 on the suit land in the name of the Plaintiff, who will pay stamp duty and other costs thereto. 3. It is further averred that the defendants defaulted under the consent order by failing to execute the sub-lease of the property in favour of the plaintiff. The plaintiff obtained an order dated 25/4/23 directing the Deputy Registrar of the court to execute a sub-lease in accordance with the consent order dated 18/11/21, transferring the suit land to the plaintiff. 4. In November 2024, the defendant disclosed that the suit land had been converted into Nairobi Block 3/104, for which a certificate of title was issued on 31/8/23. 5. Additionally, it is averred that the Land Registrar requires the original certificate of title to register the sublease in favour of the Plaintiff; however, the defendants have refused to deliver up the converted title, and the default continues in breach of the consent orders of 8/11/2021. 6. Unless the court grants the orders, the defendants will continue to frustrate the registration of the title in the Plaintiff's name, who has lived on the suit land for over two decades. 7. The application is opposed by the Defendants/respondents as follows; 1. Contrary to the Plaintiff's averments that the Defendants have been uncooperative in perfecting the sublease for the suit land, the respondents contended that it is the Plaintiff who has refused to share the draft lease with them, as evidenced by correspondence requesting the draft sublease agreement for their perusal and input. 2. Instead, the Plaintiff's counsel remained silent until 30/9/25, when they informed the respondents' counsel that the Deputy Registrar had executed the lease on the respondents' behalf and demanded that the respondents provide the original title to enable registration of the sublease. 3. That they could not surrender the title for a lease they knew nothing about the contents of. That their interests as proprietors of the property ought to be protected; hence the need to have their input in the final sublease. 4. Further, the proposed sublease is erroneous, incomplete, incompetent, and incapable of registration. Amrit Kaur Daffu and Kartaro Kaur Kalsi are not parties to this case, and, as such, the plaintiff seeks orders to register a sublease for persons who are strangers to the proceedings and have not been heard. 5. That the proper procedure would be to register the plaintiff's flat as a sectional property under the Sectional Property Act, which requires georeferencing, the preparation of a sectional plan, and the issuance of a sectional number for the flat. 6. That the management company, required under the Sectional Properties Act, has not been incorporated. 8. In his supplementary affidavit, sworn on 2/4/26, the plaintiff reiterated the contents of his earlier affidavit dated 15/1/26 and added that the defendants intend to obstruct the course of justice and avoid compliance with the consent orders, which remain unfulfilled more than seven years later. 9. Whilst giving the litigation history of the dispute in court, the Plaintiff contended that the allegations that the sublease does not comply with the provisions of the Sectional Properties Act and/or that the management company has yet to be incorporated are an afterthought and an attempt to rewrite the consent of the parties, which was adopted on 8/11/2022. The defendants have refused to deliver the said title without just cause and in defiance of a court order. The court was urged to allow the application. 10. The parties have filed their respective written submissions, which I have read and considered. 11. The key issue for determination is whether the application is merited. 12. It is averred that the suit lands underwent conversion of title and that the new title now reads Nbi/Block 3/104 in the new certificate of lease. The Plaintiff seeks orders to amend it to read Flat No 2 on Title No Nbi/Block3/104 [originally LR No 1870/IV/82]. 13. I have perused the parties' prior consent orders, which identify the suit property as Flat No 2 on LR No 1870/VI/82. The Respondents have acknowledged, in their affidavits, the conversion of the suit land from LR No 1870/VI/82 to Nbi/Block 3/104. The court hereby takes judicial notice of the ongoing process of converting titles in Nairobi from the old system to the new blocks, consistent with land and title reforms within the City County. Although the copy of the converted title was not enclosed for the court's perusal, and in the absence of any objections, this application is therefore allowed as prayed. 14. The next issue concerns whether Amrit Kaur Daffu and Kartaro Kaur Kalsi are parties to this lawsuit. The respondents contend that they are not parties and that any orders registering a sublease involving strangers to the proceedings who have not been heard should be deemed improper. The record shows that, following the plaintiff's application, the court, on 25 April 2023, replaced the deceased 1st defendant with the two parties. See the orders dated 19 November 2024. To the extent that the parties were substituted, the court holds that they have been parties to the suit since 2024, and the claim that they are strangers is without merit. This claim is hereby dismissed. 15. On the 3rd issue, the court finds that on 25/11/22 the court delivered its ruling as follows; “That the Deputy Registrar of this court execute the transfer/sublease with the terms and conditions set out in the Land Act 2012, and any other requisite documents necessary for the registration of the sublease in respect of the property known as Flat No 2 - Lr No 1879/VI/82 in Nairobi, in favour of the Plaintiff or his nominee, in terms of the consent dated 18/11/2021. The costs of the registration of the sublease and the transfer of the said Flat No 2, with the attendant stamp duty payable, to be paid and/or recovered from the defendants jointly and severally.” 1. The Plaintiff has informed the court that the sub-lease has been executed by the Deputy Registrar in accordance with the above court orders. The respondents' case is that they were not given the opportunity to review the lease, contrary to their right to have their interest in the property protected. They claim they cannot approve a lease of which they are unaware. For this reason, they have declined to release the original title certificate to the Plaintiff to enable registration of the lease. 2. The record shows that the parties exchanged views on the draft lease until 19/6/23, when the draft was forwarded to the Plaintiff's lawyer for comments and proposed amendments. For about 2 years, nothing was said about it until 30/9/25, when the Plaintiff's lawyers informed the respondents' lawyers that they had obtained an executed sublease from the Deputy Registrar in accordance with the court orders of 25/4/23, and called for the original title to complete the registration. Alarmed, the respondents' lawyers protested and refused to release the original title, on the ground that they had been bypassed in perfecting the sublease. In my view, the respondents were afforded time and opportunity to review the sublease. Their protest is therefore without merit, given that the Deputy Registrar executed the sublease in accordance with the court's orders. Further, the respondents have not shown the prejudice they will suffer if the sublease is registered in the state in which it is. They have not explained the nature of any comments or views omitted from the sublease that would injure their property rights. Lastly, the said court orders have not been appealed, reviewed, or set aside. This issue is therefore overtaken by events. 3. On the final issue, namely whether the defendants should deliver the original title to facilitate registration of the sublease in favour of the Plaintiff, the respondents contend that they will not deliver the original title unless they are involved in perfecting the sublease. They have faulted the current sublease on the ground that it does not conform to the provisions of the Sectional Properties Act, which require georeferencing, a sectional plan and the issuance of a sectional number for the flat. To the Plaintiff, these processes are another tactic to delay completion of the transaction. It is not clear to the Court how refusing to surrender the title will, if at all, cure the respondents' objections. It appears to me that, in any event, surrender of the original title remains necessary, in line with the parties' consent dated 8/11/21, under which the respondents consented to provide the completion documents to the Plaintiff for the purpose of registering the sublease. 4. Section 31 of the Land Registration Act provides as follows: “ If a certificate of title or a certificate of lease has been issued, then, unless it is filed in the registry or the Registrar dispenses with its production, it shall be produced on the registration of any dealing with the land or lease to which it relates, and, if the certificate of title or the certificate of lease shows all subsisting entries in the register, a note of the registration shall be made on the certificate of title or the certificate of lease. (2) Where the disposition is a transfer, the certificate shall, when produced, be cancelled, and in that case a new certificate may be issued to the new proprietor. (3) Where the disposition is a charge, the certificate shall be delivered to the chargee. 1. From the above, it is clear that the law contemplates a situation in which the title is unavailable, and the Land Registrar is empowered to dispense with its production. In this case, it is categorically stated that the respondents have declined to produce the said title for the effective registration of the sublease in favour of the Plaintiff. 2. To serve the interest of justice, the court makes orders as follows; 1. The application is allowed as prayed. 2. That the reference to the suit property in the consent decree dated and recorded on 11/12/2027 [sic] and in all consequential orders of this court be and is hereby amended to Flat No 2, Title Number Nairobi/Block 3/104 [originally LR No 1870/IV/82] [suit land]. 3. That the defendants, whether acting themselves or through their agents, be and are hereby directed to deliver to the plaintiffs and/or their nominee the original lease for the property known as LR No 1870/IV/82 in Nairobi, and any other necessary completion documents required for the registration of the sublease dated 23/8/24 for Flat No 2 on the suit land in Nairobi in the name of the Plaintiff, by the Land Registrar, in accordance with Clause 2 of the consent dated 8/11/21, within **30 days** of the date of this order. In default, the Land Registrar be and is hereby mandated to dispense with the production of the original title and to register the said sublease dated 23/8/24 for Flat No 2 on Title Number Nairobi/Block 3/104 [originally LR No 1870/IV/82] in Nairobi. 4. Costs of the application shall be met by the Respondents 3. It is so ordered. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. Mr Litoro for the Plaintiff/Applicant 2. N/A for the Defendants/Respondents 3. CA- Mr Amos