[2017] KEHC 3310 (KLR)
The court found that the decree issued on 31st January, 1983 specifically identified the subject matter as L.R. No. 4953/16/V. Although the order of 20th April, 1983 did not indicate the land reference number, the decree was sufficiently clear. Since the 5th defendant has not executed the transfer for their 1/5...
Source-derived case information.
- Citation
- [2017] KEHC 3310 (KLR)
- Parties
- Plaintiff: Kitamaiyu Farmers Co. Ltd; Defendant: Tadeo Mwaura; Defendant: Peter Karanu Kahora; Defendant: Michael Ndungu Mihingo; Defendant: Ismail Maingi Mureithi; Defendant: Nyambura Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 626 of 1982
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Execution of Transfer Deed
- Outcome
- application granted
- Judges
- LM Njuguna
- Legal Topics
- Transfer of Land, Execution of Decree, Registrar Powers, Share Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kitamaiyu Farmers Co. Ltd
Plaintiff
Tadeo Mwaura
Defendant
Peter Karanu Kahora
Defendant
Michael Ndungu Mihingo
Defendant
Ismail Maingi Mureithi
Defendant
Nyambura Kariuki
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Execution of Transfer Deed
Legal Issues
- 1 Whether the High Court Registrar should be ordered to execute the transfer deed for the remaining 1/5 share of land parcel L.R. No. 4953/16/V in place of the 5th defendant.
- 2 Whether the previous court orders and decree sufficiently identify the subject land to justify the requested execution.
Ratio Decidendi
The court found that the decree issued on 31st January, 1983 specifically identified the subject matter as L.R. No. 4953/16/V. Although the order of 20th April, 1983 did not indicate the land reference number, the decree was sufficiently clear. Since the 5th defendant has not executed the transfer for their 1/5 share and cannot be traced, and the previous order contemplated execution by the Registrar, the court held that it is just and proper to grant the application. The Registrar is therefore ordered to execute the transfer deed for the remaining 1/5 portion of the land in place of the 5th defendant.
Court Disposition
application granted
Orders
- The High Court Registrar shall execute the transfer deed for the remaining 1/5 portion of land parcel L.R. No. 4953/16/V in place of the 5th defendant.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURT
HIGH COURT CIVIL CASE NO 626 OF 1982
KITAMAIYU FARMERS CO. LTD…………………………………PLAINTIFF
VERSUS
TADEO MWAURA…………………………………………………1ST DEFENDNAT
PETER KARANU KAHORA………………………………………..2ND DEFENDNAT
MICHAEL NDUNGU MIHINGO……………………………………3RD DEFENDANT
ISMAIL MAINGI MUREITHI…………………………………..…..4TH DEFENDANT
NYAMBURA KARIUKI………………………………………...……5TH DEFENDANT
RULING
The plaintiff/Applicant has moved this court by way of Notice of Motion dated the 28th February, 2017, seeking orders that the High Court Registrar do execute the transfer deed for the remaining portion of land parcel L.R. No. 4953/16/V in place of the 5th defendant.
The application is premised on the grounds on the face of the motion and its supported by the affidavit of Sylvester Kimani Gitau sworn on the 23rd February, 2015.
The summary of the facts as captured in the said affidavit are that; the plaintiff purchased land parcel No. L.R. 4953/16/V from the defendants who each held a 1/5 share of the aforesaid land. Though the first four defendants transferred their shares to the plaintiff, a 1/5 share of the land was not transferred by the 5th defendant whom the plaintiff is not able to trace.
That the High Court had on 20th April, 1983 issued an order directed at the Registrar of the High Court to sign and execute the transfer deed in place of all the defendant but instead, they were signed by the 1st, 2nd, 3rd and 4th defendants individually but the 5th defendants did not execute the same thus the remaining share by the 5th defendant is yet to be transferred.
The applicant has sought orders to issue to the Registrar to execute the transfer deed for the remaining 1/5 portion of the aforesaid land.
The court has considered the application, the affidavit in support and the submissions by the counsel for the applicant. The court has perused the order issued on 20th April, 1983 and I note that the land reference number is not indicated but the decree issued on the 31st January, 1983 has specifically identified the subject matter of the suit as L.R. No. 4953/16/V. In the premises, I find and hold that the application has merits and the same is granted as prayed.
Dated, signed and delivered at Nairobi this 10th day of July, 2017
…………………
L. NJUGUNA
JUDGE
In the presence of:
…………………………………………………for the Plaintiff
………………………………………………for the 1st Defendant
………………………………………………for the 2nd Defendant
………………………………………………for the 3rd Defendant
………………………………………………for the 4th Defendant
………………………………………………for the 5th Defendant