[2016] KEELC 208 (KLR)
The court found that the Applicant had properly served Thabiti Finance Company Limited (in liquidation) with the application for release of the title document, as evidenced by the affidavit of service and supporting documents. However, given the nature of the order sought and the existence of an outstanding charge...
Source-derived case information.
- Citation
- [2016] KEELC 208 (KLR)
- Parties
- Plaintiff: Nairobi City County; Defendant: J.M. Okea; Applicant: Welvin Investments Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application Appllcation138 of 2013
- Procedural Posture
- Miscellaneous Application / Interlocutory Application for Release of Title Document Post Vesting Order
- Outcome
- interim order; further directions issued
- Legal Topics
- Vesting Orders, Execution of Decree, Charged Property, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nairobi City County
Plaintiff
J.M. Okea
Defendant
Welvin Investments Limited
Applicant
Procedural Posture
Miscellaneous Application / Interlocutory Application for Release of Title Document Post Vesting Order
Legal Issues
- 1 Whether the court should direct Thabiti Finance Company Limited (in liquidation) to release the title document to the Applicant upon payment of any agreed dues.
- 2 Whether proper service was effected on the finance company as required by law.
- 3 Whether the court should grant the finance company an opportunity to respond before making a final order.
Ratio Decidendi
The court found that the Applicant had properly served Thabiti Finance Company Limited (in liquidation) with the application for release of the title document, as evidenced by the affidavit of service and supporting documents. However, given the nature of the order sought and the existence of an outstanding charge of Kshs. 5.5 million on the property, the court determined it was necessary to give the finance company an opportunity to be heard before making a final order. The court exercised its discretion under Section 63(e) of the Civil Procedure Act to ensure that justice is done and that the interests of all parties, including the finance company as chargee, are considered....
Court Disposition
interim order; further directions issued
Orders
- Ms. Hellen Chepkwony, the liquidation agent, to be served with this order in person.
- The liquidation agent is granted 21 days from the date of service to file a response to the application.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
MILIMANI LAW COURTS
ELC MISC. APPL. NO. 138 OF 2013
IN THE MATTER OF: THE ENVIRONMENT AND LAND COURT ACT, 2011
AND
IN THE MATTER OF: THE RATING ACT CHAPTER 267 OF THE LAWS OF KENYA
BETWEEN
NAIROBI CITY COUNTY.................................PLAINTIFF/DECREE HOLDER
AND
J.M. OKEA.............................................DEFENDANT/JUDGMENT DEBTOR
AND
WELVIN INVESTMENTS LIMITED......................PURCHASER/APPLICANT
RULING
By an order dated 13th February 2014 this Court issued a vesting order to the Applicant following the purchase of LR. No. BLK 110/442 Thome in execution of a decree issued by the 1st Class Magistrate Court, Nairobi on 25th June 2013in Civil Suit No. 9 of 2013. The Applicant has however discovered that the property is encumbered hence the instant application dated 30th October 2015.
The Applicant seeks an order the Court be pleased to direct Thabiti Finance Company Limited (in liquidation) to release the title document to the Applicant upon payment of any agreed dues.
The supporting affidavit is sworn by Njugi B. Gachogu, Advocate on record for the Applicant. Thereunder he deposes that the Plaintiff obtained a decree against the Defendant in respect of rates arrears for the subject property. Pursuant thereto, the Plaintiff sold the property to the Applicant and a vesting order was granted by the Court. It is deposed that the Applicant learnt that the suit premises is charged to Thabiti Finance Company Limited (in Liquidation), a fact that was not within its knowledge at the time of obtaining the decree and vesting order, thus it has been unable to transfer the subject property. Counsel referred to correspondence between itself and the finance company limited, marked “NBG1”, and deposed that the said company can only release the charged title upon a court order. It was deposed that it is only just that the instant application be allowed to enable the Applicant to proceed as appropriate.
This application was served upon Thabiti Finance Company Limited (in Liquidation) following an order of the Court. An affidavit of service sworn by Bernard M. Musyoka on 8th February 2016 details how the application was served upon the finance company. Annexed to the affidavit is a copy of the application and hearing notice which bear a stamp of the finance company. Notably, there was no response filed by the finance company or appearance in court despite service. The deponent states that service was effected upon the Secretary of the finance company. Whereas this is proper service in accordance with Order 5 Rule 3(b) of the Civil Procedure Rules, it is admitted that the title has a charge registered in favour of the finance company. On perusal of the correspondence annexed to the affidavit, the balance outstanding on the account is Kshs. 5. 5 Million. Due to the nature of the order sought by the Applicant it would be proper for this Court to get a representation from the finance company. This Court has a duty under Section 63(e) of the Civil Procedure Act to make such order that is just to prevent the ends of justice from being defeated.
In the circumstances, and there being officers of the liquidation agent in conduct of this matter, as can be identified from the correspondence availed in the Applicant’s affidavit, the court directs and orders that Ms. Hellen Chepkwony be served with this order in person. The liquidation agent is hereby granted leave of 21 days from the date of service to file a response to the application.
It is so ordered.
Dated, Signed and Delivered this 7thday of October, 2016.
L.GACHERU
JUDGE
In the Presence of:-
None attendance for the Plaintiff/Decree Holder
None attendance for the Defendant/Judgment Debtor
Chege Kamau holding brief for Mr Njugi for Purchaser/Applicant
Vincent : Court Clerk
L.GACHERU
JUDGE
Court:
Ruling Read in open Court in the presence of the above advocates holding brief for Mr Njugi for the applicants.
L.GACHERU
JUDGE