Sha & another v Clozet Investments Ltd & another

and Passport size photographs and any other relevant document in so far as they cannot be obtained be and is hereby dispensed with. v. An Order be and is hereby issued directing the 2nd Respondent to issue title in favour of the Applicants and/or their nominees and all the requisite documents of transfer be signed by the Deputy Registrar of this Court. vi. That a declaration be and is hereby issued that pending registration of transfer in favour of the Applicants, the 1st Respondent holds the title in trust for the Applicants. vii. Costs of the application be in the cause. 3. The application was supported by the adavit of the 2nd Applicant on grounds that the 2nd Applicant had entered into a sale agreement with the 1st Respondent over the suit property on the 14th April 2004.That the 2nd Applicant paid the full purchase price of the same and the Applicants took possession of the property. She deponed that registration of the transfer of the property was not eected by the 1st Respondent at the time of purchase due to ongoing marital issues with the 1st Applicant but they followed up on the same in the year 2018 to have the transfer eected and it was then that they could not trace the 1st Respondent and tried to reach out to the 1st Respondent’s sister company that denied any relations with the 1st Respondent. The Applicants are desirous of having the property registered in their name having paid the full price and are apprehensive that unless the court grants the orders, the disappearance of the 1st Respondent will hinder the said registration. 4. The 1st Defendant was served by way of substituted service on the 25th December 2025 evidenced by an adavit of service sworn by one Peter Mutisya, but they did not enter appearance. The 2nd Respondent was served and led a memorandum of appearance on the 27th January 2026 but did not le any response to the application hence the application is uncontroverted Submissions 5. The Applicants led submissions dated 20th June 2026 in support of their application. The issue for determination was whether the application is merited. They reiterated the contents in their supporting adavit an insisted having paid the full purchase price they had performed their obligations and were given possession. That their interests are legally enforceable and deserving of protection relying in the case of Peter Mbiri Michuki -Vs- Samuel Mugo Michuki [2014] eKLR where it was held that; “the rights of a purchaser in possession after paying the purchase price are overriding interests binding on the registered owner” That the 1st Respondent was only know holding the property in trust for the Applicants having surrendered title upon the signing of the agreement and obligations performed 6. Counsel submitted that the court has power to nominate a person to so execute a document if the person who ought to have done so in the rst-place refuses or neglects to do so which in this case, the person were untraceable relying in, Mary Wairimu Gakere -Vs- Muiruri Raphael Njuguna 2020KEELC418(KLR). Analysis and Determination 7. Having looked at the application and submissions led, the Respondents having not put in their replies, I come to the conclusion that the only substantial issue for determination, is whether the Applicants are entitled to the orders as prayed for in the Notice of motion application dated 9th September 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5770/eng@2026-09-24 2

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8. The Applicants have produced documentary evidence in their supporting adavit by adducing a Copy of an oer letter dated 14th April 2004. The question will be then was the letter of oer a binding contract as between the parties. A rst perusal through the letter of oer has no acceptance by both parties neither has it been attested to by a witness 9. Land sale contracts are subject to the formal statutory requirements set out in Section 3(3) of the Law of Contract Act which provides as follows: “ 3(3) No suit shall be brought upon a contract for the disposition of an interest in land unless’: a. b. 10. the contract upon which the suit is founded— i. is in writing; ii. is signed by all the parties thereto; and the signature of each party signing has been attested by a witness who is present when the contract was signed by such party: The Court of Appeal [Gicheru JA, Kwach JA, and Muli JA] in East African Fine Spinners Limited (in receivership) & 3 others -Vs- Bedi Investments Limited [1994] eKLR, expressing himself on this question, Gicheru JA adopted the following words of Lord Westbury LC in Chinnock -Vs- The Marchioness of Ely 4 DE G J&S 638 at 646: “ As soon as the fact is established of the nal mutual assent of the parties to certain terms, and those terms are evidenced by any writing signed by the party to be charged or his agent lawfully authorized, there exist all the materials, which this court requires, to make a legally binding contract. But if to a proposal or oer an assent be given subject to a provision as to a contract, then the stipulation as to the contract is a term of the assent, and there is no agreement independent of that stipulation.” Gicheru JA further adopted the following words of Sir Raymond Evershed MR in Bennet, Walden & Co -Vs- Wood [1950] 2 All ER 134 at page 137: “Parties contracting in particular words must be assumed to intend the ordinary meaning of those words. Applying the proper test of construction, viz, what is the ordinary, straightforward, meaning of the language, it seems to me reasonably clear that the answer here is that by “oer” is meant a rm oer. In the ordinary sense of the term in business matters an oer is something which by acceptance creates a bargain. An oer subject to contract lacks that essential characteristic, for its acceptance does not create a contract.” 11. Going by the above, it goes without saying, that there was no contract as between the parties that is worth of consideration before this court. The other documentary evidence attached in a certicate of title in the 1st Respondent’s name which is anything shows the property is in the 1st Respondent’s name and not the Applicants. The copies of cheques do not point to the fact that consideration was made in full to eect completion. The documents are not convincing enough to enable this court give the orders needed in the application. 12. I hold the view that the Applicants have not established their claim to title is legitimate and are therefore not entitled to the orders as in the Notice of motion application dated 9th September 2025. Final disposition https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5770/eng@2026-09-24 3

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Consequently, I make the following orders; i. The application dated 9th September 2025 lacks merit and is hereby dismissed. ii. Costs shall be in the cause. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 24TH DAY OF SEPTEMBER 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Kigen for the Plainti/Applicant N/A for the Respondent Ms. Mwangi Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5770/eng@2026-09-24 4

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