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ELCPartially AllowedChamber Summons application dated 11th February, 2021 (in High Court Civil Case No. 27 of 2010)· [2021] KEELC 3444 (KLR)

Philip Ngethe v Kenneth Mwangi & 2 others [2021] KEELC 3444 (KLR)

High Court of Kenya
28 April 2021
COChristine Ochieng
837 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court directed the Director of Land Administration to issue a new land title after the Land Registry stalled a court-ordered transfer.

What this practically means

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Executive summary

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This was an unopposed Chamber Summons application dated 11th February 2021, brought by Philip Ngethe under Order 1 Rule 10, Order 51 Rule 8 and Section 3A of the Civil Procedure Act, seeking to enjoin the Director of Land Administration in a land suit, to have the order of 3rd April 2019 enforced, and to compel issuance of a new title in respect of LR No. 25699, also known as Plot No. 316R. The background was that the court had, on 3rd April 2019, ordered revocation of the title in the name of the 1st Respondent, Kenneth Mwangi, and registration of the Applicant as owner, and on 18th September 2019 enjoined the 3rd Respondent and directed him to effect the registration. Implementation stalled because the Senior Assistant Chief Land Registrar, by letter dated 14th December 2020, explained that under the repealed Registration of Titles Act the title itself constituted the land register; a Grant had been issued to Kenneth Mwangi, and cancellation would require the Applicant to commence acquiring a new lease - a process undertaken by the Director of Land Administration. The Registrar also sought direction on whether the order could be treated as a vesting order and whether it would attract stamp duty. Christine Ochieng J held that the application merely sought to implement an existing court order, that the Land Registrar's failure was administrative and fell within the Director of Land Administration's mandate, and allowed the application. The Director of Land Administration was enjoined, directed to enforce the 3rd April 2019 order as a vesting order, and directed to issue a new title to the Applicant. The court declined to make any order on stamp duty, leaving that to the Land Registry as a revenue matter. Costs were ordered to be in the cause.

Key legal issues

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Whether the Director of Land Administration should be enjoined and directed to enforce the court's transfer order and issue a new title

Holding

The application was unopposed and sought only to implement an existing court order; the failure to implement was administrative and within the Director of Land Administration's mandate.

Reasoning

The court noted prior orders of 3rd April 2019 and 18th September 2019 directing transfer of LR No. 25699 to the Applicant. The Senior Assistant Chief Land Registrar had explained in writing that under the repealed Registration of Titles Act the title was also the land register, and that issuing a new lease was a function of the Director of Land Administration. Since the application was unopposed and merely sought implementation, the court allowed it and directed the Director to treat the order as a vesting order and issue a new title.

p. 2

Legal principles established

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  • A court order directing transfer of registered land may be treated as a vesting order and enforced by the Director of Land Administration where the Land Registrar lacks capacity to issue a new title.

Court orders

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  1. 1.The Director of Land Administration be and is hereby enjoined in this suit.
  2. 2.The Director of Land Administration be and is hereby directed to enforce the order of the Court granted on 3rd April, 2019 as a Vesting Order.
  3. 3.The Director of Land Administration be and is hereby directed to issue a new title in respect to LR No. 25699 also known as Plot No. 316R to PHILIP NGETHE.
  4. 4.Costs of this application will be in the cause.

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure RulesOrder 51 Rule 8
  • Registration of Titles Act (repealed)null
Jurisdiction invoked
Order 1 Rule 10 and Order 51 Rule 8 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Philip Ngethe v Kenneth Mwangi & 2 others [2021] KEELC 3444 (KLR)", Case Analysis (2021). Chamber Summons application dated 11th February, 2021 (in High Court Civil Case No. 27 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3444/eng@2021-04-28

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