Shivji Naran Virji v Ogla Jemeli Barng’etuny [2021] KEELC 427 (KLR)

The court reasoned that an appeal to the Supreme Court is not a matter of right but an exception requiring certification of a matter of general public importance, which the Court of Appeal may reject and which the Supreme Court may vary under Article 163(5) of the Constitution. A pending certification application is therefore not a continuation of the litigation capable of delaying execution of a decree that two competent courts have already affirmed. Order 42 Rule 6 provides that no appeal operates as a stay.

The doctrine, resting on Bellamy v Sabine and codified in the repealed section 52 of the Indian Transfer of Property Act, preserves the subject matter of pending litigation against alienation to third parties. Here two competent courts have determined that the Respondent has no rights in the suit property; the application seeks transfer to the very party in whose favour the courts have ruled, so no third-party rights or prejudice arise.

The court found the Applicant had proved the Respondent failed to comply with the orders of 5th September 2019 to execute conveyance documents, and had demanded conveyance through a letter of 18th March 2021 and an email of 19th March 2021, none of which the Respondent denied. Section 98 then permits the court to nominate a person to execute the conveyance, with the executed document operating as if signed by the party originally directed.