[2006] KEHC 1969 (KLR)
The court found that the applicant, having lawfully purchased the land at a public auction, obtained the necessary Land Control Board consent, and had the transfer forms executed by the Deputy Registrar, was entitled to registration as proprietor. The inability to produce the original title deed, which remained with...
Source-derived case information.
- Citation
- [2006] KEHC 1969 (KLR)
- Parties
- Plaintiff: Simon Gathua Gateru; Defendant: Lucia Wanjiru Wanyoike; Applicant: Francis Kura Waweru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2543 of 1998
- Procedural Posture
- Civil Case / Ruling on Notice of Motion
- Outcome
- application allowed
- Judges
- JL Osiemo
- Legal Topics
- Execution of Judgment, Transfer of Land, Public Auction, Registration of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Gathua Gateru
Plaintiff
Lucia Wanjiru Wanyoike
Defendant
Francis Kura Waweru
Applicant
Procedural Posture
Civil Case / Ruling on Notice of Motion
Legal Issues
- 1 Whether the Land Registrar can be ordered to dispense with the production of the original title deed for registration of land purchased at public auction.
- 2 Whether the applicant, as purchaser through public auction, is entitled to registration despite the defendant's retention of the original title deed.
Ratio Decidendi
The court found that the applicant, having lawfully purchased the land at a public auction, obtained the necessary Land Control Board consent, and had the transfer forms executed by the Deputy Registrar, was entitled to registration as proprietor. The inability to produce the original title deed, which remained with the defendant, should not defeat the applicant's right to registration. The court exercised its inherent jurisdiction to order the Land Registrar to dispense with the production of the original title deed and to proceed with registration in the applicant's name, ensuring that the ends of justice were met and the execution of the court's judgment was not frustrated by the...
Court Disposition
application allowed
Orders
- The Land Registrar Thika shall dispense with the production of the original title deed for Land Parcel Number NGENDA/KAHUGUINI/T448.
- The Land Registrar Thika shall register Francis Kura Waweru as proprietor and issue him with a title deed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2543 of 1998
SIMON GATHUA GATERU……………..................................................…………………..PLAINTIFF
VERSUS
LUCIA WANJIRU WANYOIKE……………...............................................…..…..…….DEFENDANT
RULING
This application by way of Notice of Motion expressed to be brought under Order L Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeks order that:-
(a)The Land Registrar Thika do dispense with the production of the original title deed for Land Parcel Number NGENDA/KAHUGUINI/T448;
(b) The Land Registrar Thika do register Francis Kura Waweru as proprietor and issue him with title deed;
(c) That the costs of this application be provided for;
The application is based on the grounds:-
1) That the said original title is in possession of the Defendant Lucia Wanjiru Wanyoike.
2) That the Applicant is a purchaser through Public Auction and cannot get the original title from the defendant, registered owner, the respondent herein.
3) That the transfer cannot be registered without the production of the defendant’s original title deed.
The application is supported by an affidavit sworn by Francis Kura Waweru, the applicant herein in which he has deponed that; on 14th November 2003 he purchased land Parcel Number NGENDA/KAHUGUINI/T448 at a Public Auction held at Gatundu Town and conducted by Kangethe Enterprises; that the Honourable Court also executed the transfer forms on behalf of the defendant; that on 9th December 2005 the Gatundu South Land Control Board gave consent to transfer the land to the applicant; that on 3rd February 2006 he presented the transfer for registration at Land Office Thika when the Land Registrar declined to register
the same on the ground that the original title deed was in possession of the defendant hence this application; that he has no access to the said title deed and prays the Honourable Court to issue an order that the Land Registrar do dispense with the production of the defendant’s title deed NGENDA/KAHUGUINI/T448 and proceed to register the land in the name of the applicant.
The respondent was served but did not appear to defend the application. In his submission Mr. Macharia for the applicant urged the court to issue orders as prayed in the Notice of Motion dated 15th February 2006. He also relied on the grounds as stated on the body of the Notice of Motion as well as the affidavit sworn by the applicant.
The applicant having purchased this suit land at a Public Auction and having obtained Certificate of Sale under Order XXI Rule 83, Land Control Board consent and the transfer forms having been signed by the Deputy Registrar of this Honourable Court, the Applicant is entitled to the orders
sought. Accordingly the application is allowed in terms of prayers 1 and 2 of the Notice of Motion dated 15th February 2006.
Dated and delivered at Nairobi this 12th day June, of 2006.
J.L.A. OSIEMO
JUDGE