[2022] KEHC 15498 (KLR)

Kenya Reinsurance Corporation Limited v Omar (Civil Case 279 of 2001) [2022] KEHC 15498 (KLR) (15 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15498 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case 279 of 2001

OA Sewe, J

November 15, 2022

Between

Kenya Reinsurance Corporation Limited

Plaintiff

and

Leila Hassan Omar

Defendant

Ruling

1. The application for determination is dated March 23, 2021. It was filed on behalf of the defendant, Leila Hassan Omar, for an order that the suit property, namely Plot No 5979/I/MN (the suit property) be vested in the defendant. She further prayed that the land registrar be ordered to register her as the proprietor of the suit property. The application was filed under article 159 of the Constitution and sections 1A, 1B and 3A of the Civil Procedure Act, chapter 21 of the Laws of Kenya. It was predicated on the grounds that on or about January 1994, the plaintiff entered into an agreement for the sale of the suit property to the defendant; and that, on account of the defendant’s default in payment of the balance, the plaintiff filed this suit claiming the sum of Kshs 3,513,878. 80 from the defendant.

2. It was further averred by the defendant that, ultimately, the suit was finally settled and she agreed to pay the plaintiff a sum of Kshs 4,750,000/= in full and final settlement of the amount claimed by the plaintiff; which amount she fully paid by March 1, 2019. She complained that despite paying the aforesaid sum as agreed, the plaintiff has failed to release the title documents to her, thereby necessitating the filing of the instant application. She added that, at all material times, she has been in occupation of the suit property and that this application is purely for purposes of completion of the registration process and vesting of title in her name.

3. The defendant annexed to her supporting affidavit sworn on March 23, 2021 copies of letters dated January 16, 2015 and March 15, 2019 as well as receipts issued by M/s A B Patel & Patel Advocates in proof of payment of the aforementioned sum of Kshs 4,750,000/= agreed between the parties (marked annexure “AHO-2”). The defendant also annexed additional letters (marked annexure “AHO-3”) written by the defendant in pursuit of the completion documents from the plaintiff. It was her assertion that the letters elicited no response at all from the plaintiff.

4. No response was filed by the plaintiff to the instant application and no appearance was made on its behalf on November 1, 2022 when the matter came up for hearing. Needless to say that the hearing date was taken in the presence of counsel for the plaintiff on October 25, 2022. In essence therefore, the application is unopposed.

5. The single issue arising for determination in the application is whether the defendant has shown that she is entitled to a vesting order as sought. In this regard, the defendant has presented credible evidence to demonstrate that she entered into an agreement with the plaintiff on/or about January, 1994 for the sale of plot No 5979/I/MN. That the defendant defaulted and failed to settle the sum of Kshs 3, 513,878. 80/= which necessitated the filing of the suit herein on the May 28, 2001 by the plaintiff. The plaintiff had prayed for the following reliefs: -(a)Specific performance of the sale agreement by way of execution of the transfer by the defendant and thereafter registration of the transfer and charge against the title of plot No 5979 of section I mainland north, Mombasa.(b)An order that in default of execution by the defendant within 21 days of the judgment the registrar of this court to execute the transfer in the place of the defendant.(c)Payment of Kshs 3,513,878. 80 as set out herein above.(d)Interest thereon at the rate of 24. 5% from time to time calculated on day to day basis from the May 2, 2001 until payment in full.(e)Cost of and incidental to this suit.(f)Any other or further relief this court may deem fit to grant.

6. In the alternative, the plaintiff asked for the following reliefs:(a)damages for breach of agreement;(b)vacant possession forthwith of the suit premises;(c)interest on damages until payment in full;(d)costs of and incidental to this suit;(e)any other or further relief this court may deem fit to grant.

7. The defendant has further shown that during the pendency of the suit, she engaged in negotiations with the plaintiff and reached an out of court settlement in respect of the suit. Thus, an agreement was entered into between the parties for the defendant to pay the sum of Kshs 4,750,000/= in full and final settlement; an amount that she fully paid by the March 1, 2019. She has produced receipts in proof of payment and her evidence in that regard is entirely uncontroverted. Hence, in his oral submissions before the court on the November 1, 2022, Mr Gikandi, counsel for the defendant, urged the court to find, on the basis of the documents presented herein by the defendant, that that she has fully paid the purchase price for the acquisition of plot No 5979/I/M N and is therefore entitled to be supplied with the necessary completion documents so as to finalize the registration the property in her name.

8. Indeed the record confirms the submissions of Mr Gikandi that whereas the plaintiff variously asked for time to avail the completion documents, the promises in that regard were to no avail. The defendant also indicated that she has all along been in occupation of the suit property and that the instant application is simply for completion of the registration process in her favour. That assertion also remains uncontroverted.

9. It is not lost on the court that this matter was filed 21 years ago and, therefore, the overriding objectives enjoin this court ensure its disposition and thereby bring this longstanding matter to a close. The Court of Appeal in the case ofJohn Gakure & 148 others v Dawa Pharmaceutical Co Ltd & 7 others[2010] eKLR, the court with approval relied on the case of City Chemist (NBI) & another v Oriental Commercial Bank Ltd, civil applicationNo NAI 302/2008 (UR) where the court stated: -“The overriding objective thus confers on the court considerable latitude in the interpretation of the law and rules made thereunder, and in the exercise of its discretion always with a view to achieving any or all the attributes of the overriding objective. One view taken by this court, differently constituted, is that:“The jurisdiction of this court has been enhanced and its latitude expanded in order for the court to drive the civil process and to hold firmly the steering wheel of the process in order to attain the overriding objective….. and its principal aims. In our view, dealing with a case justly includes inter alia reducing delay, and costs expenses at the same time acting expeditiously and fairly. To operationalise or implement the overriding objective, in our view, calls for new thinking and innovation and actively managing the cases before the court, including the granting of appropriate interim relief in deserving cases.”

10. I therefore find merit in the application dated March 23, 2021 and hereby order that:(a)A vesting order be and is hereby granted, vesting the property known as plot No 5979/I/MN in the defendant, Leila Hassan Omar;(b)The land registrar, Mombasa, be and is hereby ordered to effect registration of the vesting order upon service in accordance with the law.(c)Each party to bear their own costs.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF NOVEMBER, 2022. OLGA SEWEJUDGE