John Chege Mbatia v Harbir Singh Rooprai & 2 others [2021] KEELC 1188 (KLR)
The bottom line
#Kenya's High Court waived the requirement for an original title deed so a decades-old land transfer decree could finally be completed and registered.
What this practically means
#Executive summary
#Key legal issues
#Whether a court order dispensing with production of the original title is required to register a transfer
The discretion rests with the Land Registrar, and a party should ordinarily request it in writing first; only if refused may the party move to court. However, where the transfer is already subject to a court decree, a second court order dispensing with production of the original title is not strictly necessary, and the court may nonetheless grant dispensation to bring an end to a long-running dispute
The court relied on section 31(1) of the Land Registration Act, which permits the Registrar to dispense with production of a certificate of title. It adopted prior decisions holding that the Registrar holds this statutory discretion without need of a court order, and that a party should request it in writing before approaching the court. Here the applicant had not communicated with the Registrar, but given the suit's age (filed around 2007) and the existence of a decree, the court dispensed with the requirement to avoid further shuttling between court and registry.
Whether the defendants were entitled to completion of the transfer decreed under the consent judgment
Yes; since the plaintiff failed to execute the transfer and to release the original title, the Deputy Registrar had executed the transfer under section 98 of the Civil Procedure Act, and the remaining obstacle - production of the original title - was waived
The suit was settled by a consent adopted as final judgment obliging the plaintiff to release the original title and sign transfer documents. The plaintiff did not comply. Under section 98 of the Civil Procedure Act the Deputy Registrar executed the transfer on the plaintiff's default, but the transfer could not be lodged without the original title. The court exercised its discretion to waive that requirement so the decree could take effect.
Legal principles established
#- The discretion to dispense with production of an original title deed for registration of a dealing lies with the Land Registrar under section 31 of the Land Registration Act, and a court order is not always necessary to permit its exercise; however, in appropriate cases a court may direct dispensation, particularly where a suit has been long pending and a decree requires enforcement
Court orders
#- 1.The application dated 20th August 2021 is allowed in terms of prayer no. 2 of the application
- 2.The Land Registrar's requirement for parties to produce the original Title documents by the defendants is dispensed with
- 3.The transfer should be effected in line with the decree which makes reference to transfer of half a portion of the land 209/2489/9 (I.R. No. 97006/1)
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 96, 97, 98 and 99 of the Civil Procedure Act; Section 31 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Chege Mbatia v Harbir Singh Rooprai & 2 others [2021] KEELC 1188 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1188/eng@2021-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.