[2019] KEELC 161 (KLR)
The court found that the applicant had complied with the judgment by paying the outstanding balance of the purchase price, as evidenced by a letter and bankers cheque attached to the application. The respondent's claim of non-payment was untrue. There was no stay of execution in place, and the respondent's refusal...
Source-derived case information.
- Citation
- [2019] KEELC 161 (KLR)
- Parties
- Applicant: Mildred Sandra Igadi; Respondent: Elizabeth Mudeithi Fedha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 193 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Application for Execution
- Outcome
- application granted
- Judges
- NA Matheka
- Legal Topics
- Transfer of Land Title, Execution of Judgment, Land Control Board Consent, Revocation of Title Deed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mildred Sandra Igadi
Applicant
Elizabeth Mudeithi Fedha
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Application for Execution
Legal Issues
- 1 Whether the Deputy Registrar should be empowered to execute transfer documents on behalf of the respondent to facilitate transfer of land title to the applicant.
- 2 Whether the respondent's refusal to execute transfer documents constitutes disobedience of a court order.
- 3 Whether the applicant has complied with the judgment by paying the outstanding balance of the purchase price.
Ratio Decidendi
The court found that the applicant had complied with the judgment by paying the outstanding balance of the purchase price, as evidenced by a letter and bankers cheque attached to the application. The respondent's claim of non-payment was untrue. There was no stay of execution in place, and the respondent's refusal to execute the transfer documents amounted to disobedience of a valid court order. The court held that its orders must be enforced and cannot be frustrated by a party's non-compliance. Accordingly, the application was merited, and the Deputy Registrar was empowered to execute all necessary documents to effect the transfer of the suit property to the applicant. The title deed...
Court Disposition
application granted
Orders
- The Deputy Registrar is empowered to execute, on behalf of the respondent, all documents necessary to facilitate the transfer or registration of title No. Tiriki/Shamakhokho/1456 into the applicant's name.
- The title deed issued to the respondent in respect of land parcel No. Tiriki/Shamakhokho/1456 is revoked and/or cancelled to facilitate the transfer into the applicant's name.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC NO. 193 OF 2015
MILDRED SANDRA IGADI..............................................................PLAINTIFF/APPLICANT
VERSUS
ELIZABETH MUDEITHI FEDHA............................................DEFENDANT/RESPONDENT
RULING
The application is dated 20th August 2019 and is brought under Sections 98 and 3A of the Civil Procedure Act and Sections 70 of the Land Registration Act No. 3 of 2012 seeking for orders that:
a) That Deputy Registrar of this Honourable Court be empowered to execute, on behalf of the defendant/respondent, the application for consent to the Land Control Board, the transfer forms and or any other documents necessary to facilitate the transfer or registration of title No. Tiriki/Shamakhokho/1456 into the plaintiff’s name.
b) The title deed, if any, issued to the defendant/respondent in respect of land parcel No. Tiriki/Shamakhokho/1456 be revoked and or cancelled to facilitate the transfer of the tile thereof into the plaintiff/applicant’s name.
c) Costs of this application be provided for.
It is based on the annexed affidavit of Mildred Sandra Igadi, the plaintiff/applicant and on the following principal grounds that this honourable court ordered and directed the defendant/respondent to execute all the documents necessary to facilitate the transfer of title No. Tiriki/Shamakhokho/1456 into the plaintiff’s/applicant’s name. That the defendant/respondent has in a bid to disobey this court’s orders declined to surrender the title deed and execute the relevant documents of transfer of the suit land to Mildren Sandra Igadi. That it is only proper and just that the orders sought herein be granted.
The respondent submitted that the plaintiff is not entitled to the orders sought given that contrary to the judgement of the court he has not paid to the defendant the sum of Kshs.50,000/= being the outstanding balance of the purchase price of the suit parcel. The plaintiff through her advocates on record had intimated an amicable out of court settlement and the defendant relied on this promise, the application comes as a surprise and a negation of this spirit and the defendant who had filed a notice of appeal withheld further action thus the plaintiff is estopped by conduct. The plaintiff should comply with the terms of the judgement herein thereafter the defendant undertakes to voluntarily execute all necessary documents of transfer of the suit parcel into the name of the plaintiff. The application is premature and made in bad faith in the circumstances.
This court has considered the application and the submissions therein the grounds of this application are that this honourable court ordered and directed the defendant/respondent to execute all the documents necessary to facilitate the transfer of title No. Tiriki/Shamakhokho/1456 into the plaintiff’s/applicant’s name. That the defendant/respondent has in a bid to disobey this court’s orders declined to surrender the title deed and execute the relevant documents of transfer of the suit land. The respondent submitted that the plaintiff is not entitled to the orders sought given that contrary to the judgement of the court he has not paid to the defendant the sum of Kshs.50,000/= being the outstanding balance of the purchase price of the suit parcel. This is indeed untrue as the applicant has attached a copy of a letter to the respondent’s advocate attaching a bankers cheque for the same. There is no stay of execution in this matter and court orders cannot be made in vain. I find that this application is merited and I grant the same with costs to the applicant.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 18TH DECEMBER 2019.
N.A. MATHEKA
JUDGE