John Wallace Mathare & another v Joyce Wanja Gitau & 6 others [2016] KEELC 141 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Release of title deeds deposited in court as security/condition for stay of execution pending appeal
The application was allowed; the titles deposited pursuant to Angawa J's orders are to be released to the Plaintiffs to enable execution of the undisturbed 1999 judgment.
The court found it undisputed that judgment was entered for the Plaintiffs by Angawa J, that the Defendants' appeal was dismissed with costs, that the Plaintiffs paid the Kshs.201,650/= ordered by the Court of Appeal, and that applications for leave to appeal to the Supreme Court were refused both in the Court of Appeal and the Supreme Court. The purpose of the deposit lapsed with the determination of the appeal, so release aids execution.
Status of the judgment of Angawa J after the appellate history
The judgment of 16th August 1999 remains undisturbed and binding on the Defendants, entitling the Plaintiffs to specific performance and cancellation of the 7th Defendant's title.
The Court of Appeal dismissed the Defendants' appeal on 26th April 2013 with costs, leaving only an order that the Plaintiffs pay Kshs.201,650/= to the 1st Defendant's estate. Leave to appeal to the Supreme Court was denied on 8th November 2013 and the Supreme Court dismissed a review of that decision on 16th October 2015, so the 1999 judgment stands.
Proceeding in the absence of the Defendants' advocates
The court, having satisfied itself that the Defendants' advocates were duly served with a hearing notice, allowed the Plaintiffs' counsel to proceed.
On 9th May 2016 the Defendants' advocates did not appear despite being duly served. The court exercised its discretion to hear the application ex parte on the strength of proof of service, heard Mr. Nyaribo for the Plaintiffs, and determined the application on the undisputed documentary history.
Legal principles established
#- Where title deeds were deposited in court pending the hearing and determination of an appeal, and that appeal has been determined, the prevailing party is entitled to their release to aid execution of the judgment.
- Cancellation of a fraudulently obtained title and issuance of a new title requires surrender of the earlier titles to the Land Registrar for cancellation.
Court orders
#- 1.The Notice of Motion dated 18th March 2014 is allowed in terms of prayer 2 thereof (release of the title deeds for LR No. 13459/44, 13459/45, 13459/46, 13459/47 and 13459/48 deposited in court to the Plaintiffs)
- 2.The Plaintiffs shall have the costs of the application
- Jurisdiction invoked
- Original jurisdiction of the High Court over the suit; the application is a Notice of Motion dated 19th March 2014 for release of title deeds deposited in court pursuant to orders of Angawa J dated 22nd September 1999
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Wallace Mathare & another v Joyce Wanja Gitau & 6 others [2016] KEELC 141 (KLR)", Case Analysis (2016). Not stated in the judgment (Notice of Motion dated 19th March 2014 in HCCC suit concerning LR No. 13459/4/(I.R. No. 53362)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/141/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.