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ELCPartially Allowed· [2024] KEELC 4533 (KLR)

Finnlemm Co-op Savings & Credit (SACCO) Society Ltd v Ng’ang’a (Sued as Legal Administrator of the Estate of Kariuki Gachinga alias Kariuki Gachinga Kiruku) & 3 others (Environment and Land Case E029 of 2020) [2024] KEELC 4533 (KLR)

Environment and Land Court
6 June 2024
LOL. A. Omollo
2,308 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court can order its Deputy Registrar to sign sale documents when a party defies a mediation settlement adopted as a court order.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff/Applicant's Notice of Motion dated 27th September 2023 seeking orders that the Deputy Registrar execute, on behalf of the Defendants, documents necessary to implement a decree dated 9th November 2022 arising from a mediation settlement agreement dated 7th July 2022, adopted as a court order. The parties had mediated a dispute over the sale of land (LR No. 10301/8, original, Nakuru), under which the Applicant would purchase 20 acres instead of the contracted 40 acres. Clause 4 required a further variation agreement to be signed by all parties, and clause 5 required undertakings before release of the deed plan. The 1st Defendant, the sole surviving administratrix of the estate of the registered owner, refused to sign. The 2nd and 3rd Defendants supported the application, confirming compliance with the decree. The 1st Defendant opposed via grounds of opposition, arguing abuse of process and contravention of privity of contract. The court framed two issues: whether the application was merited and costs. It found the settlement agreement adopted as a court order, so privity did not arise; that the 2nd and 3rd Defendants had complied; and that the 1st Respondent had not fulfilled her obligations. The application was allowed: the Deputy Registrar was authorized to execute the deed of further variation, the individual undertaking of the administratrix, and the professional undertaking by PG Kaingu & Company. The abandoned prayer relating to EW Kamuyu & Company was not granted. The 1st Respondent was to bear the costs, and on compliance the matter would be marked as settled.

Key legal issues

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01

Whether the Deputy Registrar should be authorized to execute documents on behalf of the 1st Respondent

Holding

The application was merited; the 1st Respondent had failed to fulfil her obligations under the mediated settlement adopted as a court order, so the Deputy Registrar was directed to execute the deed of variation and undertakings on her behalf

Reasoning

The court found the mediation settlement agreement dated 7th July 2022 was adopted as an order of the court with a decree issued. The 2nd and 3rd Respondents fulfilled their obligations, but the 1st Respondent, the sole surviving administratrix of the estate, refused to execute the deed of further variation. Since the transaction concerned estate property, her signature was needed to transfer to the purchaser, and the court intervened to unlock the deadlock.

p. 5
02

Whether the doctrine of privity of contract bars the order sought

Holding

Privity of contract does not arise because the mediation settlement agreement was adopted as an order of the court, and the application is a post-judgment application

Reasoning

The 1st Respondent argued that compelling execution on her behalf contravened privity of contract and that the Applicant was abdicating its duties under the settlement. The court rejected this, holding that the settlement agreement had been converted into a decree of the court, so the obligations were enforceable as court orders rather than merely contractual terms.

p. 5

Legal principles established

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  • Where a mediation settlement agreement has been adopted as an order of the court, the doctrine of privity of contract does not arise to defeat its execution

Court orders

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  1. 1.The Deputy Registrar of the court authorized and directed to execute, for and on behalf of the 1st Defendant/Respondent, a Deed of Further Variation of Agreement for Sale of a portion (20 acres) of LR No. 10301/8 (original) Nakuru
  2. 2.The Deputy Registrar authorized to execute an Individual Undertaking by the Administratrix Margaret Wairimu Ng'ang'a
  3. 3.The Deputy Registrar authorized to execute a Professional Undertaking by M/s PG Kaingu & Company, Advocates for the 1st Defendant, as per the draft attached to the application
  4. 4.The 1st Respondent to bear the costs of the application
  5. 5.On performance of the above, the matter to be marked as settled

Authorities

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Legislation

  • Law of Successionnot specified

Cases cited (3)

  • Robert Osike Ageri v Kenneth Mulongo Ojwang
    [2020] eKLR
  • Re Estate of Simon Kiprop Cheruiyot (Deceased)
    [2021] eKLR
  • John Mwangi Ndegwa v Kanyi Gichuhi
    [2019] eKLR
Jurisdiction invoked
Original civil jurisdiction; enforcement of a mediation settlement agreement adopted as an order of the court and decree issued 21st November 2022

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, "Finnlemm Co-op Savings & Credit (SACCO) Society Ltd v Ng’ang’a (Sued as Legal Administrator of the Estate of Kariuki Gachinga alias Kariuki Gachinga Kiruku) & 3 others (Environment and Land Case E029 of 2020) [2024] KEELC 4533 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4533/eng@2024-06-06

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