[2021] KEELC 4388 (KLR)
The court found that the issue of the validity of the sale of land parcel LIETEGO SETTELEMENT SCHEME /83 had already been conclusively determined by previous rulings, including that of Justice Mutungi on 26th July 2019 and by the Court of Appeal. The Plaintiff's continued refusal to sign the transfer documents,...
Source-derived case information.
- Citation
- [2021] KEELC 4388 (KLR)
- Parties
- Plaintiff: Samwel Ayienda Mokua; Defendant: Tinga Trading Company Ltd; Defendant: Alfred Kenneth Makori
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 98 of 2000
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Execution of Transfer
- Outcome
- application granted
- Judges
- DO Ogal
- Legal Topics
- Transfer of Land, Public Auction, Execution of Judgment, Consent Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Ayienda Mokua
Plaintiff
Tinga Trading Company Ltd
Defendant
Alfred Kenneth Makori
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Execution of Transfer
Legal Issues
- 1 Whether the Deputy Registrar should be ordered to sign transfer documents for land parcel LIETEGO SETTELEMENT SCHEME /83 on behalf of the Plaintiff.
- 2 Whether the Plaintiff's continued challenge to the validity of the sale is tenable after previous court rulings.
Ratio Decidendi
The court found that the issue of the validity of the sale of land parcel LIETEGO SETTELEMENT SCHEME /83 had already been conclusively determined by previous rulings, including that of Justice Mutungi on 26th July 2019 and by the Court of Appeal. The Plaintiff's continued refusal to sign the transfer documents, despite the confirmed sale and dismissal of all challenges, amounted to unjustified obstruction of the execution of a lawful court order. In the interest of justice and to give effect to the court's judgment, the court held that the Deputy Registrar should be empowered to sign all necessary documents to effect the transfer of the property to the Applicant.
Court Disposition
application granted
Orders
- The Deputy Registrar of the Environment and Land Court at Kisii shall sign all documents necessary to effect the transfer of land parcel number LIETEGO SETTELEMENT SCHEME /83 to the Applicant.
- The costs of the application shall be borne by the Respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONEMENT AND LAND COURT AT KISII
ELC CASE NO. 98 OF 2000
SAMWEL AYIENDA MOKUA...................................PLAINTIFF
VERSUS
TINGA TRADING COMPANY LTD................1ST DEFENDANT
ALFRED KENNETH MAKORI.......................2ND DEFENDANT
RULING
INTRODUCTION
1. This Ruling is in respect of the Purchaser/Applicant’s Notice of Motion dated 22nd November 2019 seeking that this Honourable court be pleased to order that the Deputy Registrar of this Honourable Court to sign all documents necessary to effect the transfer of land parcel number LIETEGO SETTELEMENT SCHEME /83 to the Applicant.
2. The Application is supported by the grounds set out in the Applicant’s affidavit sworn on 22nd November 2019. The long and short of it is that the Plaintiff/Respondent’s land was sold to the Applicant in a public auction way back in 2007 pursuant to a consent judgment between the Plaintiff and Defendant whose terms the Plaintiff failed to honour. Thereafter, the Plaintiff filed a plethora of Applications in an effort to stop the transfer of the suit property to the Applicant to no avail. In its ruling dated 26. 7.2019 the court dismissed the Respondent’s Application and confirmed the sale of land parcel number LIETEGO SETTELEMENT SCHEME /83 by the Applicant. The Applicant avers that despite the said ruling, the Respondent had refused to sign the relevant transfer documents.
3. The Respondent filed a Replying Affidavit signifying his opposition to the Application. In the said affidavit he seems to be challenging the validity of the sale, an issue that has been settled by this court and the Court of Appeal.
4. The Application was canvassed by way of written submissions and both parties filed their submissions which I have considered.
The singular issue for determination is whether the Deputy Registrar should sign the relevant transfer documents on behalf of the Plaintiff.
5. Having considered the history of this matter and the various rulings culminating in the ruling of my brother Justice Mutungi on 26. 7.2019, I have no doubt in my mind that that there is absolutely no reason why the Application should not be granted. The Court having confirmed the sale, and the Applicant having demonstrated that the Plaintiff is reluctant to sign the transfer documents, it is in the interest of justice that the documents be signed by the Deputy Registrar.
6. The reasons advanced by the Plaintiff and the submissions of his erstwhile counsel have been the subject of various rulings and as I understand it, the issue of the validity of the sale is now settled.
7. That being the position, I find merit in the Application and I grant it in terms of prayer 2 of the Notice of Motion. The costs of this Application shall be borne by the Respondent.
Dated, signed and delivered at Kisii this 8th day of February 2021.
J.M ONYANGO
JUDGE