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ELCDismissedNot stated in the extract· [2021] KEELC 2307 (KLR)

Charles Ntiritu M’Ikunyua & 3 others v Stephen Robert Gitonga Njagi [2021] KEELC 2307 (KLR)

Environment and Land Court
28 July 2021
ECE.C. Cherono
2,082 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Filing an appeal doesn't stop a land judgment from being enforced — go to the Land Registrar first, not back to court.

What this practically means

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Executive summary

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Following a judgment of 14th June 2018 in which the Plaintiffs proved adverse possession of land parcel Kiirua/Naari/1178 registered in the Defendant's name, and a decree directing the Defendant to execute transfer documents (with the Deputy Registrar empowered to execute in default), the Plaintiffs applied on 7th August 2020 for orders dispensing with production of the original title deed, which remained in the Defendant's hands and could not be traced. The Defendant opposed, citing his Notice of Appeal filed on 28th June 2018 and a pending stay application at the Court of Appeal in Nyeri filed on 31st December 2018, unprosecuted allegedly due to shortage of judges. The court framed two questions: whether the application was merited, and the effect of the intended appeal. Relying on Section 31 of the Land Registration Act and authority, the court held that the discretion to dispense with production of an original title lies with the Land Registrar, to be invoked first by written request, and that where a transfer flows from a court order in adverse possession, no second court order is required. Since the Plaintiffs had not approached the Registrar or evidenced refusal, court intervention was unwarranted; moreover the Defendant had resurfaced through his advocates. On the second issue, an appeal does not operate as a stay, and the Defendant's three-year delay in prosecuting his stay application was unsatisfactory. The application was dismissed with each party bearing its own costs, and the Plaintiffs were at liberty to write to the land registrar seeking registration of the transfer.

Key legal issues

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01

Whether the court should order dispensation with production of the original title deed

Holding

The application fails because the statutory discretion lies with the Land Registrar and the Plaintiffs did not first approach the Registrar or demonstrate any refusal; no evidence of a requirement by the Registrar to produce the title was presented

Reasoning

Section 31 of the Land Registration Act vests the discretion in the Registrar. The correct procedure is a written request to the Registrar with reasons; court intervention is warranted only on refusal. Where a transfer stems from a court order in adverse possession, no second order is needed. The Plaintiffs produced no evidence of communication to, or refusal by, the Registrar, and the Defendant had resurfaced and was contactable through his advocates.

p. 3
02

Effect of the Defendant's Notice of Appeal and pending stay application

Holding

The pending appeal and stale stay application do not prevent the Plaintiffs from enjoying the fruits of the 2018 judgment

Reasoning

Under Order 42 Rule 6 of the Civil Procedure Rules, an appeal does not operate as a stay. The Defendant's stay application had lain unresolved since 31st December 2018 and his explanation of judicial shortage was unsatisfactory. In the absence of a stay order, the successful litigant is entitled to the fruits of the judgment and may pursue registration.

p. 3

Legal principles established

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  • The Land Registrar is vested with the discretion to dispense with production of an original title deed, and a party must first request the Registrar in writing; only if the Registrar refuses should the party move to court
  • Where a transfer is effected pursuant to a court order, such as a decree in adverse possession, the Land Registrar need not require a further court order to dispense with production of the original title
  • An intended appeal or an appeal does not operate as a stay of execution

Court orders

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  1. 1.The application dated 7th August 2020 is dismissed
  2. 2.Each party to bear its own costs
  3. 3.In the absence of an order granting stay of execution, the Plaintiffs are at liberty to write to the land registrar requesting registration of the transfer of the suit land in their favour

Authorities

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Legislation

  • Land Registration ActSection 31
  • Land Registration ActSection 14
  • Civil Procedure Rules, 2010Order 42 Rule 6

Cases cited (6)

  • Stanley Kangethe Kinyanjui Vs Tony Ketter & 5 Others
    C.A No. 31 of 2012
  • Eliud Muchiri Muchori Vs Muchori Macharia
    [2019] e KLR
  • George Gathuru Karanja Vs George Gathuru Thuo & 2 Others
    [2019] e KLR
  • Machira T/A Machira & Co Advocates Vs East African Standard (No. 2)
    [2002] KLR 63
  • In Re Estate of Phillip Kiogo Tunga (Deceased)
    [2020] e KLR
  • Bethwel Mwangi Githinji & 2 others Vs Harrison Wachira Wanjohi & another
    [2019] e KLR
Jurisdiction invoked
Original suit for adverse possession; incidental application under Section 31 of the Land Registration Act (No. 3 of 2012) and Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Charles Ntiritu M’Ikunyua & 3 others v Stephen Robert Gitonga Njagi [2021] KEELC 2307 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2307/eng@2021-07-28

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