[2005] KEHC 1915 (KLR)
The court found that the plaintiff, having obtained an order for specific performance and paid the balance of the purchase price, is entitled to have the lease executed and registered in its favor. However, the added party, as administrator of the late interested party, retains the benefit of the caveat lodged...
Source-derived case information.
- Citation
- [2005] KEHC 1915 (KLR)
- Parties
- Plaintiff: Prince Enterprises; Defendant: Prestige Developers Limited; Interested Party: Alnoor Abdulsultan Hassanali; Added Party: Nasreen Kauser A. Satar Chandu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 5402 of 1993
- Procedural Posture
- Civil Suit / Ruling on Post Judgment Application for Execution of Specific Performance and Removal of Caveat
- Outcome
- Application granted in part; lease to be executed in favor of plaintiff subject to subsisting caveat; costs to applicant.
- Judges
- PJ Ransley
- Legal Topics
- Specific Performance, Removal of Caveat, Competing Equitable Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Prince Enterprises
Plaintiff
Prestige Developers Limited
Defendant
Alnoor Abdulsultan Hassanali
Interested Party
Nasreen Kauser A. Satar Chandu
Added Party
Procedural Posture
Civil Suit / Ruling on Post Judgment Application for Execution of Specific Performance and Removal of Caveat
Legal Issues
- 1 Whether the court should authorize execution of the lease in favor of the plaintiff pursuant to the order for specific performance.
- 2 Whether the caveat registered by the interested party/additional party should be removed from the title to the suit premises.
- 3 Whether the interests of the added party, as administrator of the late interested party, override the plaintiff's right to specific performance.
Ratio Decidendi
The court found that the plaintiff, having obtained an order for specific performance and paid the balance of the purchase price, is entitled to have the lease executed and registered in its favor. However, the added party, as administrator of the late interested party, retains the benefit of the caveat lodged against the title, reflecting her unregistered but asserted equitable interest. The court declined to determine the validity of the competing claims at this stage, holding that the lease in favor of the plaintiff should be registered but remain subject to the existing caveat. The removal of the caveat was not granted, and the parties must resolve their competing interests in due...
Court Disposition
Application granted in part; lease to be executed in favor of plaintiff subject to subsisting caveat; costs to applicant.
Orders
- The Registrar of the High Court is authorized to execute the lease for Villa No. 7 in favor of the plaintiff in terms of the draft lease annexed.
- The lease in favor of the plaintiff shall be registered subject to the caveat lodged by the added party, which remains on the register.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA NAIROBI
CIVIL DIVISION
CIVIL SUIT 5402 OF 1993
PRINCE ENTERPRISES………………………………………………….PLAINTIFF
VERSUS
PRESTIGE DEVELOPERS LIMITED………………………………...DEFENDANT
ALNOOR ABDULSULTAN HASSANALI .............…………INTERSETED PARTY
NASREEN KAUSER A. SATAR CHANDU…………………………ADDED PARTY
RULING
By its Notice of Motion of the 10/2/2003 the Applicant seeks the following orders: 1. THAT pursuant to the judgment delivered by this court (Mr. Justice Ransley) on 18th December 2002 and upon payment into court by the Plaintiff of the sum of Kshs 2,000,000 being the balance of the purchase price payable under the Sale Agreement dated 6th May 1993 and made between the Plaintiff as purchaser and the Defendant as vendor of Villa No. 7 situated on the property known as L.R No. 1870/111/140 the Registrar of this Honorable Court be authorized to execute the lease for the same in terms of the draft lease annexed hereto.
2. THAT caveat registered as L.R No. 54743/20 on 13th January 1994 against Villa No. 7 situated on the property known as L.R No. 1870/111/140 by the interested Party claiming a purchase’s interest in the said villa be removed. The orders sought are pursuant to my judgment herein of the 18/12/2002 whereby l ordered specific performance of a sale agreement between the Plaintiff and the Defendant. Mr. Wandabwa for the added party opposed the application on the grounds that the orders sought would affect the interest of the added party. He relied on the case of The Town Council of Ol’Kalau Vs Nganga General Hardware C.A No. 269 of 1997.
The added party is the widow of her late husband Almor Abdul Sultan Hassan Mohammed who was joined in this suit as an interested party. As the interested party he took no part in this matter nor sought to be joined as a Defendant. The interested party and now the added party were at all material times and still are in possession of the suit premises. They are there by virtue of an agreement to purchase the suit premises which the interested party alleged he entered into with the Defendant. The position now is that the Applicant herein has an order for specific performance of the suit premises against the Defendant and the added party is in possession as an administrator of her late husband by virtue of what is claimed to be completed agreement sale.
Mr. Wandabwa further submitted that the registration of a lease in favor of the Applicant would affect the caveat in favor of the added party and that the court had no power to remove it. In this respect he relied on Mwangala Vs Bandali [1984] KLR 751 and Wagiciengo Vs Gerrard [1982] KLR 336 At present apart from being in possession and her husband having lodged a caveat against the title to the property the added party has no registered title to the suit premises. It is not for this court to determine which of the competing claims of the Applicant and the added party is correct.
The Applicant has advanced its cause by getting an order for specific performance. I see no reason why this order should not be implemented and the lease in its favor registered. However, the added party is entitled to the benefit of the caution lodge by her late husband against the title to the suit premises. In the result l grant the orders asked for but the lease in favor of the Applicant will be subject to the caveat in favor of the added party which remains on the register. It is up to the parties in due course to sort the position out but that is of no concern to this court now. The applicant will have the costs.
DATED and DELIVERED at NAIROBI on 4th July 2005
P.J RANSLEY
JUDGE