[2011] KEHC 3566 (KLR)
The court found that the applicant, having purchased the suit property at a public auction in execution of a taxed bill of costs, is entitled to have the transfer documents executed by the Deputy Registrar to effectuate the sale. The omission to obtain a certificate confirming the sale under Order 22 rule 79 of the...
Source-derived case information.
- Citation
- [2011] KEHC 3566 (KLR)
- Parties
- Plaintiff: Rosemary Wamuyu Wachira; Defendant: Francis Ndegwa; Defendant: George Odhiambo; Defendant: Grace Wanjiru Kimani; Defendant: Peter Irungu; Applicant: Michael Kinyanjui Karanja
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 409 of 1999
- Procedural Posture
- Civil Case / Ruling on Post Judgment Application for Execution/transfer of Property
- Outcome
- application granted in part
- Judges
- SP Ouko
- Legal Topics
- Execution of Judgment, Transfer of Property, Public Auction, Possession Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary Wamuyu Wachira
Plaintiff
Francis Ndegwa
Defendant
George Odhiambo
Defendant
Grace Wanjiru Kimani
Defendant
Peter Irungu
Defendant
Michael Kinyanjui Karanja
Applicant
Procedural Posture
Civil Case / Ruling on Post Judgment Application for Execution/transfer of Property
Legal Issues
- 1 Whether the applicant is entitled to have the Deputy Registrar execute transfer documents for the suit property following a public auction sale.
- 2 Whether the omission to obtain a certificate confirming sale under Order 22 rule 79 of the Civil Procedure Rules is fatal to the applicant's claim.
- 3 Whether the Land Registrar can be compelled to re-issue a title deed through this application.
Ratio Decidendi
The court found that the applicant, having purchased the suit property at a public auction in execution of a taxed bill of costs, is entitled to have the transfer documents executed by the Deputy Registrar to effectuate the sale. The omission to obtain a certificate confirming the sale under Order 22 rule 79 of the Civil Procedure Rules was not fatal to the applicant's claim, as obtaining such a certificate would not alter the legal position. The court declined to grant an order compelling the Land Registrar to re-issue a title deed, as such relief cannot be granted in this application where the Land Registrar is not a party. The plaintiff, having failed to challenge the sale and...
Court Disposition
application granted in part
Orders
- The Deputy Registrar is directed to execute all relevant transfer documents to facilitate and give effect to the sale by public auction of the suit property to the applicant.
- Costs of the application are awarded to the applicant.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE HIGH COSURT OF KENYA
AT NAKURU
CIVIL CASE NO.409 OF 1999
ROSEMARY WAMUYU WACHIRA.............................................PLAINTIFF
VERSUS
FRANCIS NDEGWA............................................................1ST DEFENDANT
GEORGE ODHIAMBO.........................................................2ND DEFENDANT
GRACE WANJIRU KIMANI................................................. 3RD DEFENDANT
PETER IRUNGU.......................................................................4TH DEFENDANT
AND
MICHEL K. KARANJA...............................INTERESTED PARTY/APPLICANT
RULING
It is not necessary to go to the protracted history of this dispute. Suffice only to indicate that a bill of costs against the plaintiff in this suit, Rosemary Wamuyu Wachira was taxed at Kshs.191. 440/=.
In execution of that, the plaintiff’s property, SUBUKIA/SUBUKIA BLOCK 13/50 was sold by a public auction on 20th January, 2009 to the applicant, Michael Kinyanjui Karanja. The plaintiff obtained, rather late in the day an order to stay the sale. The sale had taken place by the time the order of stay was issued prompting the court on 3rd February 2009 to vacate the order as it served no purpose. The plaintiff has taken no action to challenge the sale. Intead, it is alleged that she continues to occupy the property and is now planning to sell it.
The applicant has brought this application for orders directed at the Deputy Registrar to sign the transfer form in respect of the suit property in favour of the applicant, or in the alternative an order to issue compelling the Land Registrar,. Nakuru to re-issue a title deed in respect of the suit property to the applicant. The latter relief is clearly not available in an application brought in this manner, the Land Registrar being a Government officer and not being a party to this suit.
Regarding the main prayer, this court shall, in the exercise of powers vested by Order 22 rule 80 of the Civil Procedure Rules (formerly Order 21 rule 85), on application of the purchaser, order delivery to be made by putting the purchaser in possession of the propperty and if need be by removing the judgment-debtor or any person who refuses to vacate the same. Here I have not been asked to do this.
Although in terms of Order 22 rule 79 of the Civil Procedure Rules, the applicant ought to have obtained from the court a certificate confirming the sale, that ommission is not fatal as no difference would be made even if it was obtained. The plaintiff remains a trespasser and in order to forestall any intention of disposing of the suit property, this application is granted and the Deputy Registrar is directed to execute all the relevant transfer documents to facilitate and give effect to the sale by public auction.
Costs to the applicant.
Dated, Signed and Delivered at Nakaru this 11th day of February, 2011.
W. OUKO
JUDGE