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ELCPartially AllowedNot stated in the extract· [2016] KEELC 523 (KLR)

Fredrick Nyakagwa Osoro v Hezron Mogere & another [2016] KEELC 523 (KLR)

Environment and Land Court (formerly filed in the High Court)
20 May 2016
SOS. Okong'o
1,744 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was the plaintiff's Notice of Motion dated 27th February 2015 seeking an order that the Deputy Registrar of the High Court execute a transfer form vesting NAIROBI BLOCK 97/278 in the plaintiff pursuant to a judgment by Mutungi J. delivered on 22nd April 2013, following which a decree was extracted on 1st October 2014. The decree granted a permanent injunction restraining the defendants from dealing with the property, declared that the 1st defendant was obliged under an agreement dated 16th July 2008 to facilitate the transfer, and directed the 2nd defendant to execute transfer documents in default of which the Deputy Registrar would do so. When the 2nd defendant executed a transfer, the plaintiff discovered that the property had been transferred to the 1st defendant on 21st December 2010 during the pendency of the suit, apparently to defeat execution. The application, brought under Sections 1A, 1B, 3A and 98 of the Civil Procedure Act, was unopposed by the 1st defendant; the 2nd defendant contended it was wrongly joined. The court held that paragraph 2 of the decree placed a direct obligation on the 1st defendant to facilitate the transfer, and that directing the plaintiff to seek review would not promote the overriding objectives of the Civil Procedure Act. The court allowed the application, directing the Deputy Registrar to execute the transfer on behalf of the 1st defendant, with the plaintiff to prepare the instrument, present a current official search, and meet statutory charges such as stamp duty and registration fees. Each party was ordered to bear its own costs of the application. The ruling was delivered by S. Okong'o J at Nairobi on 20th May 2016.

Key legal issues

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01

Whether the Deputy Registrar should be nominated to execute the transfer under Section 98 of the Civil Procedure Act

Holding

Yes; the 1st defendant was resident out of the jurisdiction and unwilling to execute, so the court nominated the Deputy Registrar to execute on his behalf

Reasoning

The decree obliged the 1st defendant to facilitate the transfer of the suit property to the plaintiff. The plaintiff's uncontroverted affidavit evidence showed the 1st defendant was abroad and would not willingly execute the transfer. To require the plaintiff to file a review would consume more judicial time and not promote the overriding objectives of the Civil Procedure Act. Section 98 empowers the court to nominate a person to execute the conveyance, and the document so executed has the same effect as if executed by the party directed.

p. 3
02

Whether the obligation to transfer fell on the 1st or 2nd defendant given the post-judgment discovery of the transfer of title

Holding

Paragraph 2 of the decree imposed a direct obligation on the 1st defendant to facilitate the transfer, which could be fulfilled by executing an instrument of transfer

Reasoning

The decree was premised on the understanding that the property remained registered in the 2nd defendant's name. It emerged that the 1st defendant had procured registration into his own name on 21st December 2010 during the pendency of the suit, apparently to defeat execution. Consequently the 2nd defendant could no longer effect the transfer, and the plaintiff had to look to the 1st defendant, whose obligation under paragraph 2 of the decree was to facilitate the transfer through execution of the instrument of transfer.

p. 3

Legal principles established

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  • Where a person neglects or refuses to comply with a decree directing him to execute a conveyance, the court may nominate a person to execute the document on his behalf, and the document so executed operates as if executed by the person originally directed.
  • A party who transfers suit property to himself during the pendency of the suit cannot rely on the change of registration to defeat execution of a decree.

Court orders

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  1. 1.The application dated 27th February 2015 is allowed
  2. 2.The Deputy Registrar, Environment and Land Court, Nairobi shall execute the instrument of transfer of all that parcel of land known as NAIROBI BLOCK 97/278 on behalf of the 1st defendant in favour of the plaintiff
  3. 3.The plaintiff shall prepare the said instrument of transfer and present it to the Deputy Registrar for execution
  4. 4.The plaintiff shall present to the Deputy Registrar a current certificate of official search on the title to confirm the suit property is still registered in the name of the 1st Defendant
  5. 5.The plaintiff shall meet all statutory charges such as Stamp Duty and registration fees in respect of the transfer
  6. 6.Each party shall bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 98
  • Civil Procedure RulesNot specified (referred to generally with the overriding objectives)
Jurisdiction invoked
Sections 1A, 1B, 3A and 98 of the Civil Procedure Act (Cap 21)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fredrick Nyakagwa Osoro v Hezron Mogere & another [2016] KEELC 523 (KLR)", Case Analysis (2016). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/523/eng@2016-05-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.