[2008] KEHC 1161 (KLR)
The court found that the applicant had demonstrated sufficient cause for review of the judgment. The original order for transfer resulted in unintended financial consequences (stamp duty liability) that could be avoided by rectification of the register, which was the appropriate remedy in the circumstances. The...
Source-derived case information.
- Citation
- [2008] KEHC 1161 (KLR)
- Parties
- Plaintiff: Philomena Wanjiru Kamwere; Defendant: Patrick Nyoike Njehia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 863 of 2002
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Review/variation of Judgment
- Outcome
- Application allowed. Judgment varied to substitute order for transfer with order for rectification of the register.
- Judges
- JL Osiemo
- Legal Topics
- Review of Judgment, Rectification of Land Register, Stamp Duty Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philomena Wanjiru Kamwere
Plaintiff
Patrick Nyoike Njehia
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Review/variation of Judgment
Legal Issues
- 1 Whether the court should review and/or vary its previous judgment to substitute an order for transfer with an order for rectification of the land register.
- 2 Whether rectification of the register under Section 143 of the Registered Land Act is appropriate in the circumstances.
- 3 Whether the applicant is liable to pay stamp duty on the transfer of the suit property.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for review of the judgment. The original order for transfer resulted in unintended financial consequences (stamp duty liability) that could be avoided by rectification of the register, which was the appropriate remedy in the circumstances. The court exercised its discretion to vary the judgment to substitute the order for transfer with an order for rectification of the register, thereby ensuring that the applicant's rights are realized without unnecessary financial burden.
Court Disposition
Application allowed. Judgment varied to substitute order for transfer with order for rectification of the register.
Orders
- The application is allowed in terms of prayer (a) of the Notice of Motion dated 18th September 2007.
- The Land Registrar, Thika, is directed to rectify the register by removing the Defendant’s name and substituting it with the Plaintiff’s name in respect of LR No. RUIRU E/BLOCK 5/212.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 863 of 2002
PHILOMENA WANJIRU KAMWERE………......…….PLAINTIFF
VERSUS
PATRICK NYOIKE NJEHIA………………………..DEFENDANT
R U L I N G
The Plaintiff applies to this court by way of Notice of Motion exparte under Order L Rule 1, Order XLIV Rules 1 and 2 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, and Section 143 of the Registered Land Act for orders that this court do review and/or vary its judgment delivered on 11th February 2005 and the subsequent decree issued on 1st March 2005 and substitute its order for the transfer of the plot known as LR No. RUIRU E/BLOCK 5/212 to the Plaintiff, with an order that the Land Registrar, Thika do rectify the Register by the removal of the Defendant’s name and substitution therefore with the Plaintiff’s name.
In support of the application Philomen Wanjiru Kamwere has sworn an affidavit in which she avers that she had filed this suit against the Defendant seeking among other prayers:
An order that the Defendant do execute a Transfer in respect of the suit premises being LR No RUIRU E/BLOCK 5/212 in favour of the Plaintiff; that judgment was delivered on 11th June 2005 in her favour; that on presentation of the transfer documents to the Land Registrar for registration she was advised that she would pay stamp duty on the transfer at 4% of the value of the plot as if she was purchasing the plot from the defendant before the transfer could be registered; that the Registrar advised her that her advocate on record should have sought an order for Rectification of the Register in accordance with Section 143 of the Registered Land Act (Cap 300) instead of an order for transfer; that the Registrar further advised that she makes an Application before the court for the variation of the orders in the judgment by substituting the order for transfer with that of rectification of the register.
Mr. Wanjama for the Applicant submitted that if the order sought is granted, no stamp duty nor transfer fee is chargeable as the order sought is to rectify the register by removing the Defendant’s name from the Register and the substitution thereto with that of the Plaintiff.
Having considered the application in light of the affidavit evidence on record and submissions by Counsel, I am satisfied that this is a proper case to exercise my discretion in favour of the Applicant.
Accordingly I allow the application in terms of prayer (a) of the Notice of Motion dated 18th September 2007.
Dated at Nairobi this 13th day of June 2008.
J. L. A. OSIEMO
JUDGE