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ELCAllowedNotice of motion dated 20th May 2021 (suit number not stated in judgment)· [2021] KEELC 947 (KLR)
Joseph Ngaira Busiega & another v Kimo Eneterprises Limited & another [2021] KEELC 947 (KLR)
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#What this practically means
#Executive summary
#This was a notice of motion dated 20th May 2021 by the Plaintiffs seeking enforcement of a consent order dated 26th March 2019, adopted as a judgment of the court on 28th March 2019. Under the consent, the Plaintiffs paid the Defendants Kshs.15,500,000 in addition to the original purchase price of Kshs.5,200,000 under a 2007 sale agreement for part of LR No 12661/29 (IR 38998/1), and the Defendants were to complete transfer of Plot A (approximately 0.4070 hectares) within 60 days, failing which the Deputy Registrar would execute the transfer documents. The Plaintiffs deponed, through the 2nd Applicant Joseph Ngaira Busiega, that they paid but the Defendants refused or failed to transfer. The 2nd Defendant opposed the application as premature, citing three caveats on the title (by David Ndatha Gitau, the 1st Applicant, and Kris De Pooter) as obstacles beyond the Respondents' control, and alleged the Applicants lacked clean hands for non-disclosure of their own caveat. The court held the consent judgment's terms were clear, had not been set aside, and the replying affidavit was full of mere denials that did not address the issues. The application was allowed: a vesting order issued conferring ownership of Plot A on the Plaintiffs, the Deputy Registrar was ordered to execute the transfer instruments in favour of the 1st Plaintiff, the Chief Land Registrar was ordered to process the title documents whether or not the original title was available, and costs were awarded to the Plaintiffs against the Defendants. Delivered by L. Komingoi, Judge, in Nairobi on 11th November 2021.
Key legal issues
#01
Whether the court should enforce the consent judgment of 28th March 2019 by vesting order and directing execution of transfer documents
Holding
The application was allowed; the consent judgment had not been set aside and the Defendants, having been paid, failed to effect the transfer within 60 days as agreed.
Reasoning
The court found the terms of the consent judgment clear: the Plaintiffs paid Kshs.15,500,000 in full and final settlement, and the Defendants were to effect transfer within 60 days of payment but did not do so. The replying affidavit of the 2nd Defendant contained mere denials and did not address the issues raised, so the consent order was enforced by vesting order and execution of transfer documents.
p. 2
Legal principles established
#- A consent judgment adopted by the court may be enforced by execution, including through a vesting order, where a party fails to comply with its terms.
Court orders
#- 1.A vesting order conferring the Plaintiffs ownership of the property identified as Number A on the sub-division plan measuring approximately 0.4070 hectares on LR No 12661/29 (IR No 38998/1)
- 2.The Deputy Registrar of the court to execute all necessary documents and instruments of transfer of the said property in favour of the 1st Plaintiff
- 3.The Chief Land Registrar to process the 1st Plaintiff's title documents for the said property whether or not the original title documents are available
- 4.Costs of the application to be borne by the Defendants
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 30, 38 and 98 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Ngaira Busiega & another v Kimo Eneterprises Limited & another [2021] KEELC 947 (KLR)", Case Analysis (2021). Notice of motion dated 20th May 2021 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/947/eng@2021-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.