[2024] KEELC 13409 (KLR)
The court found that the applicants' motion sought to effectuate the judgment previously issued, which required valuation of the property and transfer of the respondent's 25% share upon payment of Kshs.40,000,000. The respondent failed to comply with the court's directions or oppose the application. The court,...
Source-derived case information.
- Citation
- [2024] KEELC 13409 (KLR)
- Parties
- Applicant: Dhanji Laxmanbhai Bhimji Raghwani; Applicant: Manji Kanji Raghwani; Applicant: Virji Kanji Raghwani; Respondent: Devji Kanji Mavji Kerai (Legal representative of the Estate of Kanji Mavji Kerai)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Enviromental and Land Originating Summons E042 of 2021
- Procedural Posture
- Environment and Land Originating Summons / Ruling on Notice of Motion for Execution of Decree and Transfer of Property Share
- Outcome
- Application allowed with costs to the applicants.
- Judges
- LN Mbugua
- Legal Topics
- Execution of Decree, Transfer of Property, Valuation of Land, Court Orders Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dhanji Laxmanbhai Bhimji Raghwani
Applicant
Manji Kanji Raghwani
Applicant
Virji Kanji Raghwani
Applicant
Devji Kanji Mavji Kerai (Legal representative of the Estate of Kanji Mavji Kerai)
Respondent
Procedural Posture
Environment and Land Originating Summons / Ruling on Notice of Motion for Execution of Decree and Transfer of Property Share
Legal Issues
- 1 Whether the applicants are entitled to have the 25% share of L.R. no 209/4593/2 transferred to them upon payment of Kshs.40,000,000 as per the court decree.
- 2 Whether the Deputy Registrar should execute the transfer instruments in the event of non-cooperation by the respondent.
- 3 Whether the deposit of Kshs.40,000,000 in a joint account is appropriate pending completion of the transfer.
Ratio Decidendi
The court found that the applicants' motion sought to effectuate the judgment previously issued, which required valuation of the property and transfer of the respondent's 25% share upon payment of Kshs.40,000,000. The respondent failed to comply with the court's directions or oppose the application. The court, relying on the principle that even unopposed applications must be scrutinized for merit, determined that the applicants had complied with the decree and were entitled to the orders sought. The Deputy Registrar was empowered to execute the transfer instruments in the respondent's stead, and the deposit of the purchase price in a joint account was appropriate to secure the transaction...
Court Disposition
Application allowed with costs to the applicants.
Orders
- The value of 25% share of L.R. no 209/4593/2, being Kshs.40,000,000, shall be deposited by the applicants in a joint bank account in the names of Ayiko Kangethe & Co Advs and Maina Makome & Co Advs pending completion and successful transfer of the share to the applicants.
- The Deputy Registrar of the court shall execute the instruments of transfer of the 25% share of L.R. no 209/4593/2 held by the respondent into the names of the applicants in compliance with the decree.
Full Case Text
Judgment text and source record
25 paragraphs
Raghwani & 2 others v Kerai (Legal representative of the Estate of Kanji Mavji Kerai) (Enviromental and Land Originating Summons E042 of 2021) [2024] KEELC 13409 (KLR) (14 November 2024) (Ruling)
Neutral citation: [2024] KEELC 13409 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Enviromental and Land Originating Summons E042 of 2021
LN Mbugua, J
November 14, 2024
Between
Dhanji Laxmanbhai Bhimji Raghwani
1st Applicant
Manji Kanji Raghwani
2nd Applicant
Virji Kanji Raghwani
3rd Applicant
and
Devji Kanji Mavji Kerai (Legal representative of the Estate of Kanji Mavji Kerai)
Respondent
Ruling
1. Before me is the Plaintiff’s Notice of Motion dated 19. 2.2024 seeking orders that:i.That the value of 25% share of L.R. no 209/4593/2 being a sum of Kshs.40,000,000 be held and deposited by the applicant in a joint bank account in the name of both Ayiko Kangethe & Co Advs and Maina Makome & Co Advs pending completion and successful transfer of the share to the applicant herein.ii.That the Deputy Registrar of this court to execute the instruments of transfer of the 25% share of L.R no 209/4593 held by the respondent into the name of the applicants herein in compliance with clause c of the decree.iii.That the cost of this application be provided for.”
2. The application is premised on the grounds on the face of the application and the supporting affidavit of Charles Mwangi Kangethe, advocate for the applicants. The applicants contend as follows;a.That Vide a Decree issued on the 17th April, 2023, the court directed that a valuation of the property L.R no 209/4593/2 be conducted and a valuation report dated 5th June 2023 was prepared placing the value of the subject property at kshs.160,000,000. b.That from the valuation report the respondent’s share of 25% of the property is assessed at Kshs.40,000,000 which is supposed to be compensated by the applicant in exchange of transfer as ordered by court in the Decree issued on the 17th April 2023. c.That however despite the applicant’s compliance with the court orders and showing willingness to pay the respondent his 25% share of Kshs.40,000,000 the respondent has declined to cooperate and continues to frustrate the process necessitating this instant application.d.That the applicants are desirable to have the matter resolved as soon as possible to have the transfer of the respondents share executed by the deputy registrar as ordered by court.e.That the applicant continues to surfer prejudice by the continued delay in concluding the matter.
3. On 16. 7.2024 in the presence of the counsel for the respondent, this court gave directions for the respondent to file and serve their response by 7. 8.2024, the applicant was to file and serve submissions by 14. 8.2024 and the respondent was to file/serve submissions by 28. 8.2024. There was no compliance on the part of the respondent hence the application is unopposed.
4. In the Supreme Court of Kenya case of Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 Others [2018] eKLR, the court stated that;“As a court of Law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the court will as a matter of cause grant the sought orders. It behooves the court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted”.
5. Thus this court has a duty to look into the merits of the current application, even if the same is unopposed. A perusal of the application reveals that the applicants simply desire the decree to be executed. Clause 1 & 11 in the judgment delivered on 9. 2.2023 indicates that the property in question was to be valued and 25% thereof was to be sold, with the applicants getting the 1st priority. Clause 111 thereof gave the Deputy Registrar the mandate to execute any requisite documents to facilitate the transfer of the aforementioned property in the event of none co-operation. The respondent has not proffered any evidence detailing the nature and extent of his compliance with the court’s judgment.
6. I therefore find that the application dated 19. 2.2024 is geared towards effectuating the aforementioned judgment. As such the said application is hereby allowed with costs to the Applicants.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14th DAY OF NOVEMBER 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Kang'ethe for PlaintiffMaina Makau for DefendantCourt Assistant: Vena