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ELCDismissedNot stated in the ruling· [2020] KEELC 510 (KLR)

Kangara Mutugi Kamau & 4 others v Kamau Mutugi & another [2020] KEELC 510 (KLR)

Environment and Land Court
20 November 2020
ECE.C. Cherono
1,014 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to sign land transfer documents for a party because no one explained why the rightful signatories had refused to sign.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) on a Notice of Motion dated 9th September 2020 by the Applicants/Plaintiffs. Following a consent judgment/consent order of 2nd July 2019 confirming the distribution of land parcels KIINE/NYANGIO/504 and KIRINYAGA/MARURUMO/57 to the applicant and other beneficiaries, the respondents, Kamau Mutugi and Nancy Wanjiku Maina, refused to execute the transfer documents, attend the Land Control Boards or surrender their title deeds, PIN certificates, identity card copies and photographs. The applicants therefore sought orders that the Deputy Registrar sign all relevant transfer documents (including forms L.R. 7 and L.R. 19) on behalf of the respondents; that the Baricho and Wanguru Land Control Boards dispense with the respondents' attendance; and that the Land Registrar Kirinyaga dispense with production of the respondents' documents in registering and issuing title. The application was unopposed and was heard ex parte. The court, applying Section 98 of the Civil Procedure Act, held that nomination of an alternative person to execute documents requires a reasonable explanation for the original party's failure or refusal to execute. No such explanation had been given, and neither side's advocates had explained their failure to prevail upon their clients. The discretion under Section 98 had to be exercised judicially and not whimsically, and no sufficient grounds existed to exercise it. The Notice of Motion was dismissed with no order as to costs.

Key legal issues

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01

Whether the discretion under Section 98 of the Civil Procedure Act could be invoked to authorise the Deputy Registrar to execute the transfer documents

Holding

The application failed because the applicants gave no explanation for the refusal of the respondents to execute the documents, and the respondents' advocates likewise offered none.

Reasoning

The consent judgment was entered after counsel for both sides compromised the suit; it was presumed that surrender of the relevant documents had been agreed. Section 98 permits nomination of another person only upon satisfaction that a reasonable explanation exists for the original party's non-execution. Neither the applicants nor the advocates representing either side explained why the respondents had refused to sign and surrender the documents. The discretion had therefore to be declined.

p. 2
02

Whether the Land Control Boards and Land Registrar could be ordered to dispense with the respondents' attendance and production of documents

Holding

This relief was not granted as the Notice of Motion was dismissed in its entirety.

Reasoning

The orders sought were ancillary to the main prayer for nomination of an alternative person to execute the transfer documents. Having declined to exercise the Section 98 discretion, the court dismissed the whole motion and made no order as to costs.

p. 2

Legal principles established

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  • A court may, under Section 98 of the Civil Procedure Act, nominate another person to execute a document only where a reasonable explanation is given why the person originally directed to execute it has not done so.
  • The exercise of the court's powers under Section 98 of the Civil Procedure Act is discretionary and must be exercised judicially, not whimsically.

Court orders

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  1. 1.The Notice of Motion dated 9th September 2020 was dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 98
Jurisdiction invoked
Inherent powers of the court in the suit in which the consent judgment was entered; Section 98 of the Civil Procedure Act (orders for execution of documents by a nominated person)

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, "Kangara Mutugi Kamau & 4 others v Kamau Mutugi & another [2020] KEELC 510 (KLR)", Case Analysis (2020). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/510/eng@2020-11-20

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