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ELCPartially AllowedEnvironment & Land Case 225 of 2015· [2023] KEELC 21716 (KLR)

Makau v Kaharabu Limited

Environment and Land Court
22 November 2023
COChristine Ochieng
1,536 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered both parties to a land-swap settlement to complete it within 60 days, or the court will sign the transfer documents for them.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) determined the Plaintiff's Notice of Motion dated 20th April 2023 in a land suit finalized by a consent order recorded on 16th October 2017 and adopted by the court on 9th November 2017. Under the consent, the Plaintiff was to transfer Athi-River/Athi-River Block 6/1118 to the Defendant, the Defendant was to transfer Athi-River/Athi-River Block 6/698 to the Plaintiff, and the Defendant was to pay Kshs. 50,000 as costs. The Plaintiff sought an order compelling the Defendant to hand over the original title deed for parcel 6/698 within 14 days or face contempt, or alternatively that the Machakos County Land Registrar cancel the Defendant's registration and issue a title to her. She complained that despite payment of costs and prior orders of 6th May 2020 allowing the Deputy Registrar to execute transfer documents, the Defendant withheld the original title and demanded, via a professional undertaking, that parcel 6/1118 be transferred to an individual rather than the company - an attempt, she argued, to vary the consent through the back door. The Defendant, through its Director Robert Shioler Linck, contended it had complied by sending completion documents and that the Plaintiff had not delivered completion documents for parcel 6/1118. The court framed a single issue: whether the application was merited. Holding the consent order undisturbed and binding, the court allowed the motion, directing compliance within 60 days, failing which the Deputy Registrar would sign the transfer forms, with no order as to costs.

Key legal issues

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01

Whether the Notice of Motion dated 20th April 2023 seeking production of the original title deed or cancellation of the Defendant's registration was merited

Holding

The application was found merited and allowed; parties were directed to comply with the consent order within 60 days, failing which the Deputy Registrar would sign the transfer forms

Reasoning

The consent order of 16th October 2017, adopted on 9th November 2017, remained in force - it had not been set aside or varied. The Plaintiff admitted the Defendant had paid the agreed costs. The court had already allowed an application for the Deputy Registrar to execute transfer documents, yet the title had not been released. The court held parties had no option but to adhere to the consent terms and allowed the motion with no order as to costs.

p. 3

Legal principles established

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  • Parties are bound by a consent order that has not been set aside or varied and must adhere to its terms

Court orders

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  1. 1.Parties to comply with the terms of the consent order within sixty (60) days from the date of the ruling
  2. 2.Failure of compliance, the Deputy Registrar will sign transfer forms for each of the parties to effect the transfers of the respective titles as indicated in the consent
  3. 3.Notice of Motion dated 20th April 2023 allowed with no order as to costs

Authorities

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Cases cited (6)

  • Victor Mabachi & Another v Nurturn Bates Ltd
    Civil Appeal No. 247 of 2005 [2013] eKLR
  • Kenya Commercial Bank Ltd v. Specialized Engineering Co. Ltd
    (1982) KLR P. 485
  • Republic v Kisumu District Lands Officer & Another
    [2010] eKLR
  • J M Mwangi & Company Advocates LLP v Conrad Maloba & Another
    (2022) eKLR
  • Reliable Electrical Engineers Ltd v Mantrac Kenya Limited
    (2006) eKLR
  • Gurdev Singh Birdi & Marinder Singh Ghatora v Abubakar Madhubuti
    CA No. 165 of 1996
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel Athi-River/Athi-River Block 6/698; enforcement of a consent order adopted by the court on 9th November 2017

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, "Makau v Kaharabu Limited", Case Analysis (2023). Environment & Land Case 225 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21716/eng@2023-11-22

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