[2006] KEHC 1441 (KLR)
The court found that the defendant, after the decree ordering subdivision and transfer of 1.25 acres to the plaintiff, transferred the entire land to his daughter, Jane Kadesa Libwege, who is now the registered proprietor. The plaintiff did not join Jane as a party nor seek cancellation of the transfer. As a result,...
Source-derived case information.
- Citation
- [2006] KEHC 1441 (KLR)
- Parties
- Plaintiff: Nathan Ifedha Oberi; Defendant: Elkana Anaya Oberi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 7 of 1986
- Procedural Posture
- Civil Case / Ruling on Post Judgment Application
- Outcome
- application dismissed
- Legal Topics
- Execution of Judgment, Transfer of Land, Registration of Title, Non Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nathan Ifedha Oberi
Plaintiff
Elkana Anaya Oberi
Defendant
Procedural Posture
Civil Case / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the court can authorize the Deputy Registrar to execute transfer documents on behalf of the defendant for 1.25 acres of land as per the decree.
- 2 Whether the defendant's transfer of the entire land to a third party (his daughter) after the judgment affects the enforceability of the decree.
- 3 Whether the non-joinder of the current registered proprietor (Jane Kadesa Libwege) precludes the granting of the orders sought.
Ratio Decidendi
The court found that the defendant, after the decree ordering subdivision and transfer of 1.25 acres to the plaintiff, transferred the entire land to his daughter, Jane Kadesa Libwege, who is now the registered proprietor. The plaintiff did not join Jane as a party nor seek cancellation of the transfer. As a result, the court held that it could not grant the order authorizing the Deputy Registrar to execute transfer documents on behalf of the defendant, since the defendant was no longer the registered proprietor and the current proprietor was not before the court. The application was therefore dismissed, as the relief sought could not be granted in the absence of the necessary party and...
Court Disposition
application dismissed
Orders
- The application is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Case 7 of 1986
NATHAN IFEDHA OBERI ...............................................................................................................PLAINTIFF
V E R S U S
ELKANA ANAYA OBERI .........................................................................................................DEFENDANT
R U L I N G
The application herein shows that the elders award dated 22-11-88 was endorsed as a judgment of the court and the extracted decree shows that land title No. S.Maragoli/Logovo/149 was ordered to be divided into two portions of 1. 25 acres and 2. 75 acres to be transferred to the plaintiff Nathan Ifedha Oberi and the defendant, Elkana Anaya Oberirespectively.
In his application dated 7/2/00, the Plaintiff alleges that the Defendant has refused to transfer the 1. 25 acres to him and prays that the Deputy Registrar of this court be authorized to execute the documents of transfer in place or on behalf of the Defendant.
The affidavit of the plaintiff sworn on 7-2-2000 in support of the application averred that the defendant had failed to transfer to him 1. 25 acres comprised in title No.S.Maragoli/Logovo/149 and instead was intent on transferring the entire land comprised in S.Maragoli/Logovo/149 to his (Defendant’s) daughter one Jane Kadesa Libwega.
In his replying affidavit sworn on 13-3-2000, the defendant averred that he was not the proprietor of the land known as S.Maragoli/Logovo/149 and as such was not capable of transferring the 1. 25 acres comprised in that title to the Plaintiff. The copy of extract of title to the said land No. S.Maragoli/Logovo/149 (now Kakamega/Logovo/149) shows that the Defendant was registered as the proprietor of the said land on 06-05-1980 and that on 7-10-1998 he transferred as a gift the said land to Jane Kadesa Libwege who is said to be his daughter. This was after the award of the elders dated 22-11-88 was adopted as a judgment of the court on 16-12-92. The application herein was made on 17-2-2000. The said Jane Kadesa Libwege has not been joined as a party although she now holds the title to the said land nor has the applicant moved the court for the cancellation of the transfer of the said land by the defendant to his daughter. In the circumstances, it is not possible for the court to grant the order sought. Mr. Nyanga, the learned counsel for the plaintiff urged the court on 30-5-2006 to grant the application but he obviously had not perused the extract of the title to the said land which was annexed to the affidavit of his client and was marked No.1.
Mr. Musiega, learned counsel for the defendant on his part told the court in opposition to the application that it had not been shown that the defendant had refused to execute the transfer documents! That cannot be a serious submission. He did not allude to the fact that his client had acted in a manner that was clearly designed to defeat the decision of the court! His other point was that the decree was about 14 years old and that there was no Notice to show cause.
Even without addressing the issue of the age of the decree, the status of the registration of the land having changed as aforesaid, the order sought cannot be granted. The application fails. It is dismissed with no order as to costs. No doubt the applicant will seek proper legal advise on how to seek redress.
Dated, signed and delivered at Kakamega this 13th day of July, 2006.
G. B. M. KARIUKI
J U D G E