[2011] KEHC 1225 (KLR)
The court found that the applicant had established a proper basis for the orders sought. The sale of the land had been conducted pursuant to a valid court order and was not challenged. The respondent's refusal to execute transfer documents or surrender the title deed should not frustrate the execution of the court's...
Source-derived case information.
- Citation
- [2011] KEHC 1225 (KLR)
- Parties
- Applicant: Makira Nathan; Respondent: James Mwangi Nathan
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 208 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Motion to Lift Prohibitory Order and Facilitate Land Transfer
- Outcome
- motion allowed as prayed
- Judges
- JK Sergon
- Legal Topics
- Execution of Court Orders, Transfer of Land, Prohibitory Orders, Court Powers in Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Makira Nathan
Applicant
James Mwangi Nathan
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Motion to Lift Prohibitory Order and Facilitate Land Transfer
Legal Issues
- 1 Whether the prohibitory order on land parcel No. Loc. 10/Wanjengi/534 should be lifted to facilitate transfer to the purchaser.
- 2 Whether the Deputy Registrar should be authorized to execute transfer documents on behalf of the respondent who is unwilling to do so.
- 3 Whether the court can dispense with the production of the original title deed when the respondent refuses to surrender it.
Ratio Decidendi
The court found that the applicant had established a proper basis for the orders sought. The sale of the land had been conducted pursuant to a valid court order and was not challenged. The respondent's refusal to execute transfer documents or surrender the title deed should not frustrate the execution of the court's orders. The court exercised its inherent powers under Section 3A of the Civil Procedure Act to lift the prohibitory order, authorize the Deputy Registrar to execute the necessary documents, and dispense with the requirement for the original title deed. This ensured that the purchaser, Lockwood Capital Ltd., could obtain title to the property in accordance with the law and the...
Court Disposition
motion allowed as prayed
Orders
- The prohibitory order issued on land parcel No. Loc. 10/Wanjengi/534 is lifted.
- The Deputy Registrar is authorized to execute all requisite documents on behalf of James Mwangi to enable transfer of land parcel No. Loc. 10/Wanjengi/534 to Lockwood Capital Ltd.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL MISC. APPL. (J.R.) NO. 208 OF 2008
MAKIRA NATHAN........................................……….…………….APPLICANT
VERSUS
JAMES MWANGI NATHAN & ANOTHER.............................RESPONDENTS
RULING
This ruling is the outcome of the Motion dated 1st November 2010 in which Makira Nathan, the applicant herein, has sought for the following orders:
(1)That the prohibitory order issued by this honourable court in land parcel No. Loc. 10/Wanjengi/534 be lifted.
(2)That the deputy registrar of this honourable court be ordered to execute all requisite documents on behalf of James Mwangi to enable land parcel no. Loc. 10/Wanjengi/534 to be transferred to Lockwood Capital Ltd.
(3)That the Land registrar be ordered to allow the dispensation of production of original title deed of Loc. 10/Wanjengi/534 when registering the transfer documents of land parcel no. Loc 10/Wanjenjengi/534 to Lockwood Capital Ltd.
(4)Costs of this application be awarded to the applicant.
The applicant has sworn an affidavit in support of the Motion. The Motion was served upon the firm of Waiguru & Co. Advocates on behalf of James Mwangi Nathan and others, the Respondents herein. There was no reply on the Respondent’s part hence the Motion proceeded for hearing exparte.
It is the submission of the Applicant herein that L.R. No. LOC.10/WANJENGI/534 was sold by auction pursuant to the court order of 1st October 2010 to Lockwood Capital Ltd. whereupon a certificate of sale was issued. It is alleged that James Mwangi has refused to execute the necessary documents to enable Lockwood Capital Ltd. obtain title yet the sale has not been challenged. The Motion is premised onSection 3A of the Civil Procedure Act. To begin with, I think it is necessary to issue an order lifting the prohibitory order issued on 28th April 2010. This will open the way to actualize the sale by effecting the transfer of the suit land to the purchaser. The aforesaid transfer cannot be effected unless the court appoints its Deputy registrar to sign the requisite documents in place of the Respondent who is unwilling to sign those documents. Where a party refuses to surrender documents like titles for cancellation, the court’s hands are not tied. The court may exercise its inherent power by issuing orders dispensing with the production of the original title when a Respondent refuses to surrender title in his possession.
In the end I find the Motion to be with merit. It is allowed as prayed.
Dated and delivered at Nyeri this 23rd day of September 2011.
J. K. SERGON
JUDGE
In open court in the absence of the parties with Notice.