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ELCPartially Allowed· [2017] KEELC 1691 (KLR)

Clement Ndungu & another v Clement Ndungu & 4 others [2017] KEELC 1691 (KLR)

Environment and Land Court
31 July 2017
EOE. O. Obaga
1,105 words in judgment
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The bottom line

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A Nairobi land court ordered sellers to complete registration and hand over title certificates for two plots after buyers paid the balance, and dismissed the sellers' attempt to lift restrictions.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (E. O. Obaga, J) determined two consolidated applications arising from a land sale dispute over Plot Nos. 50 and 51 within LR No. 7960 (IR 8561). On 1st October 2014 the court had declined an injunction over the entire parcel but preserved the status quo over Plots 50 and 51 on conditions: the balance of the purchase price of Kshs. 3 Million was to be deposited into a joint interest-earning account, and the second defendant would issue a certificate of sale and process titles for the plaintiffs. The deposit was made, but the defendants did not process the titles. Earlier ex-parte orders of 23rd July 2013 had been registered against the whole title as entry No. 46, though in fact restricted to Plots 50 and 51. The defendants' application of 31st March 2015 sought lifting of those orders, alleging they hindered transfers to other buyers; it was allowed ex-parte on 13th July 2015 in the plaintiffs' advocates' absence. The plaintiffs' application of 30th July 2015 sought setting aside of those ex-parte orders and compliance with the 1st October 2014 order. The court found entry No. 46 was expressly limited to Plots 50 and 51 and that subsequent transfers disproved any hindrance, rendering the defendants' application unnecessary; it dismissed that application. It allowed prayer (3) of the plaintiffs' application, ordering the first and second defendants to complete registration, obtain the original certificates of lease for Plots 50 and 51, and release them to the plaintiffs' advocates. Costs of both applications were awarded to the plaintiffs.

Key legal issues

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01

Whether entry No. 46 registered against LR No. 7960 restricted dealings with the entire parcel

Holding

No - the entry recorded orders restricted to Plot Nos. 50 and 51 only, and subsequent transfers of other portions confirmed this; the application to lift the orders was unnecessary and was dismissed.

Reasoning

The court examined the actual register entry and found it expressly limited the restraining orders to Plot Nos. 50 and 51. Subsequent entries showing transfers of other portions by the registered owners demonstrated the entry did not impede dealings with the rest of the land. Counsel's claim, apparently based on incomplete photocopies of the entry, was therefore unfounded and the application served no purpose.

p. 2
02

Whether the defendants should be compelled to comply with the order of 1st October 2014

Holding

Yes - the conditions in the 1st October 2014 order (deposit into a joint interest-earning account) had been satisfied, but the defendants had not issued the certificate of sale nor processed the title documents; prayer (3) of the 30th July 2015 application was allowed.

Reasoning

The court found the orders of 1st October 2014 were clear: upon opening the joint account and depositing the balance of the purchase price, the second defendant was to issue a certificate of sale and process titles in favour of the plaintiffs. The deposit was made, but compliance had not occurred. The court therefore ordered completion of registration and release of the original certificates of lease to the plaintiffs' advocates.

p. 2

Legal principles established

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  • A party who obtains the benefit of a court order must comply with it; once the deposit was made into the joint account, the defendants were bound to issue the certificate of sale and process title documents.
  • A party must apply for relief on an accurate account of the register; it was wrong to claim that a restriction entry hindered dealings when the entry showed the restriction was limited to two plots.

Court orders

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  1. 1.Prayer (3) of the application dated 30th July 2015 allowed: the first and second defendants ordered to complete registration and obtain the original certificates of lease in respect of Plot Nos. 50 and 51 within LR No. 7960 and release the original certificates of leases to the Plaintiffs' advocates in compliance with the order of 1st October 2014
  2. 2.Application dated 31st March 2015 dismissed with costs to the Plaintiffs
  3. 3.Plaintiffs awarded costs of the application dated 30th July 2015
Jurisdiction invoked
Original civil jurisdiction over the land dispute (specific provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Clement Ndungu & another v Clement Ndungu & 4 others [2017] KEELC 1691 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1691/eng@2017-07-31

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