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ELCPartially AllowedELC Mombasa (not stated in excerpt)· [2024] KEELC 325 (KLR)

Makumu & another v Kreszenntia & 4 others (Environment & Land Case 388 of 2010) [2024] KEELC 325 (KLR)

Environment and Land Court
31 January 2024
992 words in judgment
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The bottom line

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A Mombasa court allowed buyers of land to get their transfer signed by the court itself after the sellers refused to sign voluntarily.

What this practically means

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Executive summary

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The plaintiffs, Pauline Mutee Makumu and Kilungu Justus Muli, moved the court by notice of motion dated January 18, 2023 seeking that the Registrar of Titles, Mombasa be authorized and directed to sign a transfer of Subdivision No. 2444 (Original Number 1938/1) of Section 1/Mainland North and register the title in their names as equal shareholders, in place of the defendants, in compliance with item 5 of the decree of September 23, 2019 issued on November 4, 2022, which had ordered specific performance of a Deed Agreement dated 27/10/2003 by execution of the transfer. The plaintiffs deponed that their advocate forwarded the transfer to the 1st and 2nd defendants' advocates on November 10, 2022 but received no response. The 3rd defendant opposed through a preliminary objection dated November 27, 2023, contending that the Registrar of Titles registers instruments rather than signs transfers, that allowing the application would unlawfully alter the decree, and that the Registrar was not a party. The court framed two issues: whether the relief sought flowed from its judgment and decree, and what orders to issue. It found the application unopposed by the 1st and 2nd defendants and held the preliminary objection raised factual matters unsupported by affidavit evidence or submissions. Applying the Chemoltor and Osoro decisions, the court allowed the application but directed that the transfer be executed by the Deputy Registrar of the Court rather than the Registrar of Titles, with costs against the 1st and 2nd defendants and the 3rd defendant bearing his own costs of defending the application.

Key legal issues

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01

Whether the relief sought flows from the court's judgment and decree

Holding

The application was aimed at giving effect to order number 5 of the decree of September 23, 2019 (issued November 4, 2022) directing specific performance of the Deed Agreement dated 27/10/2003 by execution of a transfer of Plot No. 2444/MN/1

Reasoning

The court confirmed judgment was entered for the plaintiffs against all defendants and a decree issued. The plaintiffs' deposition that the transfer was sent for execution on November 10, 2022 was unchallenged and unrebutted. The 1st and 2nd defendants filed no opposition under Order 51 rule 14, and the 3rd defendant's preliminary objection raised no evidence. The application therefore flowed directly from the decree.

02

Whether the Registrar of Titles should be directed to sign the transfer

Holding

The court varied the mode of execution: the Deputy Registrar of the Court, not the Registrar of Titles, should execute the transfer

Reasoning

Though the plaintiffs sought empowerment of the Registrar of Titles to execute the transfer, the court considered it better that the Deputy Registrar execute the document, leaving the Registrar of Titles to handle the subsequent registration process. The court invoked its own prior practice in the Chemoltor and Osoro cases where Deputy Registrars executed transfers after judgment debtors declined to sign.

03

Efficacy of the 3rd defendant's preliminary objection

Holding

The preliminary objection failed as a sufficient rejoinder because it raised factual matters without affidavit evidence or submissions

Reasoning

The 3rd defendant's counsel on November 28, 2023 asked that the preliminary objection be treated as a reply to the application. The court held only matters of law may be raised by preliminary objection; without affidavit evidence in rebuttal or submissions, the objection could not answer the plaintiffs' unchallenged factual depositions.

p. 2

Legal principles established

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  • Where judgment debtors decline to sign a transfer, the court may empower the Deputy Registrar to execute the transfer document to give effect to the decree
  • A preliminary objection raising matters of fact, unsupported by affidavit evidence and submissions, cannot suffice as a rejoinder to an applicant's factual position

Court orders

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  1. 1.The application allowed as prayed in terms of prayer 2, save that the transfer be executed by the Deputy Registrar of the Court
  2. 2.The 1st and 2nd defendants to pay the plaintiffs' costs in the application
  3. 3.The 3rd defendant to meet his own costs of defending the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rule 14

Cases cited (2)

  • Simon Pkite Chemoltor versus William Loishakou
    [2017] eKLR
  • Fredrick Nyakagwa Osoro versus Hezron Mogere & another
    [2016] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (no specific provision cited)

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, "Makumu & another v Kreszenntia & 4 others (Environment & Land Case 388 of 2010) [2024] KEELC 325 (KLR)", Case Analysis (2024). ELC Mombasa (not stated in excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/325/eng@2024-01-31

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