Arinaitwe v Kausi & 2 others

deliver all requisite completion documents to facilitate the registration of a transfer or sublease of Flat No 2 on the suit land in the name of the Plainti, who will pay stamp duty and other costs thereto. 3. It is further averred that the defendants defaulted under the consent order by failing to execute the sublease of the property in favour of the plainti. The plainti obtained an order dated 25/4/23 directing the Deputy Registrar of the court to execute a sub-lease in accordance with the consent order dated 18/11/21, transferring the suit land to the plainti. 4. In November 2024, the defendant disclosed that the suit land had been converted into Nairobi Block 3/104, for which a certicate of title was issued on 31/8/23. 5. Additionally, it is averred that the Land Registrar requires the original certicate of title to register the sublease in favour of the Plainti; however, the defendants have refused to deliver up the converted title, and the default continues in breach of the consent orders of 8/11/2021. 6. Unless the court grants the orders, the defendants will continue to frustrate the registration of the title in the Plainti's name, who has lived on the suit land for over two decades. 7. The application is opposed by the Defendants/respondents as follows; a. Contrary to the Plainti's averments that the Defendants have been uncooperative in perfecting the sublease for the suit land, the respondents contended that it is the Plainti who has refused to share the draft lease with them, as evidenced by correspondence requesting the draft sublease agreement for their perusal and input. b. Instead, the Plainti's counsel remained silent until 30/9/25, when they informed the respondents' counsel that the Deputy Registrar had executed the lease on the respondents' behalf and demanded that the respondents provide the original title to enable registration of the sublease. c. That they could not surrender the title for a lease they knew nothing about the contents of. That their interests as proprietors of the property ought to be protected; hence the need to have their input in the nal sublease. d. Further, the proposed sublease is erroneous, incomplete, incompetent, and incapable of registration. Amrit Kaur Dau and Kartaro Kaur Kalsi are not parties to this case, and, as such, the plainti seeks orders to register a sublease for persons who are strangers to the proceedings and have not been heard. e. That the proper procedure would be to register the plainti's at as a sectional property under the Sectional Property Act, which requires georeferencing, the preparation of a sectional plan, and the issuance of a sectional number for the at. f. That the management company, required under the Sectional Properties Act, has not been incorporated. 8. In his supplementary adavit, sworn on 2/4/26, the plainti reiterated the contents of his earlier adavit dated 15/1/26 and added that the defendants intend to obstruct the course of justice and avoid compliance with the consent orders, which remain unfullled more than seven years later. 9. Whilst giving the litigation history of the dispute in court, the Plainti contended that the allegations that the sublease does not comply with the provisions of the Sectional Properties Act and/or that the management company has yet to be incorporated are an afterthought and an attempt to rewrite the consent of the parties, which was adopted on 8/11/2022. The defendants have refused to deliver https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5414/eng@2026-09-09 2

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the said title without just cause and in deance of a court order. The court was urged to allow the application. 10. The parties have led their respective written submissions, which I have read and considered. 11. The key issue for determination is whether the application is merited. 12. It is averred that the suit lands underwent conversion of title and that the new title now reads Nbi/ Block 3/104 in the new certicate of lease. The Plainti seeks orders to amend it to read Flat No 2 on Title No Nbi/Block3/104 [originally LR No 1870/IV/82]. 13. I have perused the parties' prior consent orders, which identify the suit property as Flat No 2 on LR No 1870/VI/82. The Respondents have acknowledged, in their adavits, the conversion of the suit land from LR No 1870/VI/82 to Nbi/Block 3/104. The court hereby takes judicial notice of the ongoing process of converting titles in Nairobi from the old system to the new blocks, consistent with land and title reforms within the City County. Although the copy of the converted title was not enclosed for the court's perusal, and in the absence of any objections, this application is therefore allowed as prayed. 14. The next issue concerns whether Amrit Kaur Dau and Kartaro Kaur Kalsi are parties to this lawsuit. The respondents contend that they are not parties and that any orders registering a sublease involving strangers to the proceedings who have not been heard should be deemed improper. The record shows that, following the plainti's application, the court, on 25 April 2023, replaced the deceased 1st defendant with the two parties. See the orders dated 19 November 2024. To the extent that the parties were substituted, the court holds that they have been parties to the suit since 2024, and the claim that they are strangers is without merit. This claim is hereby dismissed. 15. On the 3rd issue, the court nds that on 25/11/22 the court delivered its ruling as follows; “ That the Deputy Registrar of this court execute the transfer/sublease with the terms and conditions set out in the Land Act 2012, and any other requisite documents necessary for the registration of the sublease in respect of the property known as Flat No 2 - Lr No 1879/ VI/82 in Nairobi, in favour of the Plainti or his nominee, in terms of the consent dated 18/11/2021. The costs of the registration of the sublease and the transfer of the said Flat No 2, with the attendant stamp duty payable, to be paid and/or recovered from the defendants jointly and severally.” 16. The Plainti has informed the court that the sub-lease has been executed by the Deputy Registrar in accordance with the above court orders. The respondents' case is that they were not given the opportunity to review the lease, contrary to their right to have their interest in the property protected. They claim they cannot approve a lease of which they are unaware. For this reason, they have declined to release the original title certicate to the Plainti to enable registration of the lease. 17. The record shows that the parties exchanged views on the draft lease until 19/6/23, when the draft was forwarded to the Plainti's lawyer for comments and proposed amendments. For about 2 years, nothing was said about it until 30/9/25, when the Plainti's lawyers informed the respondents' lawyers that they had obtained an executed sublease from the Deputy Registrar in accordance with the court orders of 25/4/23, and called for the original title to complete the registration. Alarmed, the respondents' lawyers protested and refused to release the original title, on the ground that they had been bypassed in perfecting the sublease. In my view, the respondents were aorded time and opportunity to review the sublease. Their protest is therefore without merit, given that the Deputy Registrar executed the sublease in accordance with the court's orders. Further, the respondents have not shown the prejudice they will suer if the sublease is registered in the state in which it is. They have https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5414/eng@2026-09-09 3

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not explained the nature of any comments or views omitted from the sublease that would injure their property rights. Lastly, the said court orders have not been appealed, reviewed, or set aside. This issue is therefore overtaken by events. 18. On the nal issue, namely whether the defendants should deliver the original title to facilitate registration of the sublease in favour of the Plainti, the respondents contend that they will not deliver the original title unless they are involved in perfecting the sublease. They have faulted the current sublease on the ground that it does not conform to the provisions of the Sectional Properties Act, which require georeferencing, a sectional plan and the issuance of a sectional number for the at. To the Plainti, these processes are another tactic to delay completion of the transaction. It is not clear to the Court how refusing to surrender the title will, if at all, cure the respondents' objections. It appears to me that, in any event, surrender of the original title remains necessary, in line with the parties' consent dated 8/11/21, under which the respondents consented to provide the completion documents to the Plainti for the purpose of registering the sublease. 19. Section 31 of the Land Registration Act provides as follows: “ If a certicate of title or a certicate of lease has been issued, then, unless it is led in the registry or the Registrar dispenses with its production, it shall be produced on the registration of any dealing with the land or lease to which it relates, and, if the certicate of title or the certicate of lease shows all subsisting entries in the register, a note of the registration shall be made on the certicate of title or the certicate of lease. (2) Where the disposition is a transfer, the certicate shall, when produced, be cancelled, and in that case a new certicate may be issued to the new proprietor. (3) Where the disposition is a charge, the certicate shall be delivered to the chargee. 20. From the above, it is clear that the law contemplates a situation in which the title is unavailable, and the Land Registrar is empowered to dispense with its production. In this case, it is categorically stated that the respondents have declined to produce the said title for the eective registration of the sublease in favour of the Plainti. 21. To serve the interest of justice, the court makes orders as follows; 22. a. The application is allowed as prayed. b. That the reference to the suit property in the consent decree dated and recorded on 11/12/2027 [sic] and in all consequential orders of this court be and is hereby amended to Flat No 2, Title Number Nairobi/Block 3/104 [originally LR No 1870/IV/82] [suit land]. c. That the defendants, whether acting themselves or through their agents, be and are hereby directed to deliver to the plaintis and/or their nominee the original lease for the property known as LR No 1870/IV/82 in Nairobi, and any other necessary completion documents required for the registration of the sublease dated 23/8/24 for Flat No 2 on the suit land in Nairobi in the name of the Plainti, by the Land Registrar, in accordance with Clause 2 of the consent dated 8/11/21, within 30 days of the date of this order. In default, the Land Registrar be and is hereby mandated to dispense with the production of the original title and to register the said sublease dated 23/8/24 for Flat No 2 on Title Number Nairobi/Block 3/104 [originally LR No 1870/IV/82] in Nairobi. d. Costs of the application shall be met by the Respondents It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5414/eng@2026-09-09 4

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DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS. J. G. KEMEI JUDGE Delivered virtually in the presence of: Mr Litoro for the Plainti/Applicant N/A for the Defendants/Respondents CA- Mr Amos ELC 243.2017-NBI 3R of 3 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5414/eng@2026-09-09 5

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