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ELCAllowed· [2024] KEELC 1129 (KLR)

African Orthodox Church of Kenya Registered Trustees & another v Orthodox Archbishopric of Kenya and Irinoupolis Limited & another (Environment & Land Case 525 of 2015) [2024] KEELC 1129 (KLR)

Environment and Land Court
29 February 2024
OMOguttu Mboya
2,619 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ordered the Deputy Registrar to sign property transfer documents after a defendant ignored a binding mediation settlement.

What this practically means

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Executive summary

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The 1st Plaintiff/Applicant moved the court by notice of motion dated 6th February 2024 seeking orders that the Deputy Registrar be directed to execute transfer instruments over some thirty-five listed parcels of land in favour of the 1st Plaintiff, pursuant to a judgment of the court arising from an adopted mediation agreement dated 5th July 2020, under Section 98 of the Civil Procedure Act. The Defendant/Respondent opposed the application through a replying affidavit sworn by Andreas Makarios Tillyrides, contending that the application was fatally incompetent because it was supported by an affidavit sworn by the Applicant's own counsel, that the jurat was on a separate page invalidating the affidavit, and that counsel lacked instructions and authority from the client, whose original registered trustees had died. The court framed two issues: counsel's authority, and the court's jurisdiction and the merits. On the first issue, the court held that the firm of Arthur Ingutia & Company Advocates, having been instructed at the outset and never replaced by any notice of change of advocate, remained on record with authority to act, so long as the affidavit avoided controversial evidential matters. On the second issue, the court held that the adopted mediation agreement had become a judgment of the court whose terms were never challenged or reviewed, that the Respondent had failed to comply, and that Section 98 of the Civil Procedure Act, together with the court's inherent jurisdiction, empowered the court to direct the Deputy Registrar to execute the transfer instruments. The application was allowed in terms of prayer 2, with costs to the Applicant.

Key legal issues

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01

Authority of counsel to support an application by his own affidavit

Holding

The firm of M/s Arthur Ingutia & Company Advocates remained lawfully on record and was authorized to swear the affidavit, provided it did not depone to contested evidential facts

Reasoning

The respondent argued that counsel lacked instructions, particularly after the death of the original registered trustees. The court found the firm was duly instructed at the outset, prosecuted the suit to judgment, and remained on record. No notice of change of advocate had been filed to divest the firm of authority. Authority persists until lawful replacement under Order 9, though the affidavit must avoid controversial evidential matters.

p. 5
02

Jurisdiction to order the Deputy Registrar to execute transfer instruments

Holding

Section 98 of the Civil Procedure Act confers jurisdiction on the court to order the Deputy Registrar to execute the transfer instruments where the judgment debtor fails to comply

Reasoning

The dispute was referred to mediation with the parties' consent; the mediation agreement of 5th July 2020 was adopted as a judgment of the court under Section 59 of the Civil Procedure Act. Its terms, requiring the defendant to execute transfer instruments over the suit properties, were never challenged, varied or reviewed. The defendant having failed to comply, the court invoked Section 98 and its inherent jurisdiction to enforce the judgment through execution by the Deputy Registrar.

p. 6

Legal principles established

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  • An advocate retained and on record retains authority to act for a client until lawfully replaced under Order 9 of the Civil Procedure Rules
  • Upon adoption of a mediation agreement it becomes a judgment of the court binding on the parties
  • Section 98 of the Civil Procedure Act empowers the court to direct the Deputy Registrar to execute transfer instruments where a judgment debtor refuses to comply

Court orders

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  1. 1.The Application dated 6th February 2024 is allowed in terms of prayer 2 thereof
  2. 2.The Deputy Registrar is mandated and authorized to execute the requisite Transfer Instruments and documents to facilitate the transfer and registration of the listed suit properties to and in favour of the 1st Plaintiff/Applicant
  3. 3.Costs of the Application awarded to the Plaintiff/Applicant, to be agreed, and in default taxed by the Taxing Officer

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 98
  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 59
  • Civil Procedure Rules, 2010Order 19 Rule 3
  • Civil Procedure Rules, 2010Order 9 Rule 1
  • Civil Procedure Rules, 2010Order 9

Cases cited (4)

  • Shirji Naran Virji v Ogla Jemeli Bhargatuny
    (2021) eKLR
  • William Juma Mbue v Public Trustees & Another
    (2019) eKLR
  • Flora N. Wasike v Desterio Wamboko
    [1988] eKLR
  • Narok County Government v Livingstone Kunini Ntutu
    [2018] eKLR
Jurisdiction invoked
Section 98 of the Civil Procedure Act, Chapter 21, Laws of Kenya; inherent jurisdiction of the court

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, "African Orthodox Church of Kenya Registered Trustees & another v Orthodox Archbishopric of Kenya and Irinoupolis Limited & another (Environment & Land Case 525 of 2015) [2024] KEELC 1129 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1129/eng@2024-02-29

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