Kurji v Cowrie Shell Beach Apartments Ltd & another

Registration Act, Article 40 of the Constitution and other enabling provisions of the law. 3. The application is supported by the Joint Supporting Affidavit of Aman Kurji and Rishma A. Kurji, sworn at Mombasa on 4 th May 2026, together with the documents annexed thereto. Background 4. The Applicants’ case is that they acquired the property described as Subdivision Number 1642/1/MN – Flat No. A15 pursuant to a consent recorded in Mombasa Criminal Case No. 1840 of 2021, Republic v Masumali Hassan Ali Meghji T/A Masumali Meghji Insurance Brokers Limited. 5. The documentary material shows that the property had previously been transferred from Sun and Sea Apartments to Masumali Meghji Insurance Brokers Limited. The earlier transfer records a consideration of KShs. 7,540,000, inclusive of KShs. 1,040,000 VAT, and was registered on or about 18th November 2022. 6. Thereafter, Masumali Meghji Insurance Brokers Limited, as the then registered proprietor, executed a Transfer of Lease dated 30 th May 2024 in favour of the Applicants. The consideration indicated in that transfer was KShs. 6,000,000. The Applicants state that the transfer was presented for valuation and that they paid stamp duty of KShs. 240,000. 7. The material before the Court further demonstrates that the transfer in favour of the Applicants was subsequently registered on 21 st August 2024. Of particular significance is that the documents contain a Consent of the Lessor executed by the 1st Respondent, Cowrie Shell Beach Apartments Limited, being the head lessor. By that instrument the 1st Respondent consented to the transfer of the lease to Aman Kurji and Rishma A. Kurji. It is therefore not seriously

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in controversy on the material before this Court that the Applicants acquired and became registered proprietors of the subject interest. 8. Having acquired the property, the Applicants state that they subsequently elected to dispose of it. They entered into an agreement dated 20th December 2024 in favour of Ivo Johannes Marcus Dubelaar and executed the requisite transfer instruments. 9. According to the Applicants, the executed documents were forwarded to the 1st Respondent for execution and issuance of the requisite Consent to Transfer. The complaint which gave rise to these proceedings is that the 1st Respondent declined and/or failed to issue that consent, thereby preventing completion and registration of the subsequent transfer. 10. The Applicants contend that correspondence and follow-up were made regarding the consent but that no consent was forthcoming. 11. Their position is that the withholding of consent has prevented them from exercising their proprietary right to dispose of their property and has exposed them to prejudice arising from the inability to complete the transaction with their purchaser. Response to the application 12. The Applicants state in their written submissions that although the Respondents were served with the application, no response was filed. I have therefore considered the application as unopposed. 13. That, however, does not mean that the Applicants automatically obtain the orders sought. An unopposed application must nevertheless be examined on its merits. A court does not grant substantive relief merely because the opposing party has remained silent. The party seeking relief must still demonstrate a legal and factual foundation for the orders sought. Applicants’ submissions

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14. The Applicants filed written submissions dated 9th July 2026. They framed three issues for determination: a. Whether there exists a valid and enforceable contractual obligation between the Applicants and the 1st Respondent; b. Whether the 1st Respondent should be compelled to consent to the transfer of the property; and c. Whether the 2nd Respondent should be directed to effect the transfer. 15. The Applicants submit that a valid and enforceable arrangement arose from the consent recorded in Mombasa Criminal Case No. 1840 of 2021. They rely upon the principle that a consent judgment has contractual effect. 16. For that proposition, reliance was placed on Flora N. Wasike v Destimo Wamboko [1988] eKLR, where the Court of Appeal affirmed that a consent judgment or order possesses contractual effect and ordinarily may only be displaced upon grounds which would justify setting aside a contract, or where agreed conditions remain unfulfilled. 17. On the second issue, the Applicants argue that a party who has performed its obligations should not be prevented from enjoying the fruits of its bargain because another party refuses to perform a corresponding obligation. They invoke the equitable remedy of specific performance and section 3A of the Civil Procedure Act. 18. The Applicants also rely on Sarich & another v Marigi & 4 others [2025] KEELC 7482 (KLR) in support of the proposition that a court may order specific performance of a transaction involving land and may provide for execution of the necessary documents by an officer of the Court where the obligated party fails to comply. 19. They further contend that the withholding of consent infringes their proprietary rights under Article 40 of the Constitution, particularly their ability to sell and derive benefit from their property.

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20. Regarding the Land Registrar, the Applicants rely on the statutory functions of that office under the Land Registration Act and on Gatumu v Registrar of Lands Nairobi [2026] KEELC 223 (KLR). 21. They also rely on Lexis International Limited v ABC Investment Limited & another [2025] KEHC 6179 (KLR), where the High Court ordered a respondent to execute and deliver transfer documents and provided that, in default, the Deputy Registrar could execute the documents and the Land Registrar thereafter effect registration. Issues for determination 22. Having considered the application, supporting affidavit, documents, submissions and authorities, I consider the following issues to arise: i. Whether the Applicants have demonstrated an enforceable right capable of supporting an order compelling the 1 st Respondent to issue its Consent to Transfer; ii. Whether the withholding or failure to issue consent has been justified; iii. Whether the Court should make an alternative order against the Land Registrar in the event of non-compliance by the 1st Respondent; and iv. Who should bear the costs. Analysis and determination Whether an enforceable right has been demonstrated 23. The starting point is the Applicants’ registered interest in the property. The documentary material before the Court demonstrates a chain of transfer culminating in the registration of the Applicants as proprietors of the leasehold interest in Flat A15. Their acquisition is therefore not merely prospective.

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24. The Court also has before it an instrument expressly headed “Consent of the Lessor”, executed by the 1 st Respondent in its capacity as head lessor, consenting to the transfer that vested the property in the Applicants. 25. I therefore find that the 1st Respondent was not a stranger to the Applicants’ acquisition. It participated in the conveyancing process in its capacity as head lessor and expressly recognized the transfer into their names. 26. The Applicants place considerable reliance on the consent recorded in Mombasa Criminal Case No. 1840 of 2021 and on Flora Wasike v Destimo Wamboko. 27. I agree with the legal principle stated in Flora Wasike: a consent order has contractual effect and is binding unless set aside upon established grounds. 28. I would, however, place a qualification on the Applicants’ argument. The mere fact that a consent facilitated their original acquisition does not, without more, mean that every subsequent disposition of the property must automatically be approved by the 1st Respondent. The present transaction in favour of Ivo Johannes Marcus Dubelaar is a subsequent transaction and must be considered on its own circumstances. 29. Accordingly, I do not determine this application exclusively upon the proposition that the earlier consent created a perpetual contractual obligation upon the 1st Respondent to approve every future assignment. What is material, however, is that the Applicants have demonstrated: that they became registered proprietors; that the 1st Respondent recognized their acquisition as head lessor; that they subsequently executed a disposition in favour of a purchaser; that the 1st Respondent’s consent was sought in order to complete that transaction; and that no reason for withholding such consent has been placed before the Court. Effect of the Respondent’s silence

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30. The Applicants allege that the 1 st Respondent has declined or failed to issue consent notwithstanding follow-up. That allegation has not been controverted. More importantly, the 1 st Respondent has not placed before this Court any term of the lease, statutory restriction, outstanding obligation, arrears, breach, defect in the intended transaction, concern regarding the purchaser, or any other lawful reason explaining why consent should not issue. 31. The Court is conscious that the burden of proof remains upon the Applicants. Nevertheless, once evidence has been placed before the Court establishing ownership, an intended disposition, a request for the lessor’s consent, and continued withholding of that consent, it would have been open to the 1st Respondent to explain the legal or contractual basis for its refusal. None has been offered. 32. Property rights under Article 40 are not absolute and remain subject to lawful restrictions. Equally, however, a restriction upon a proprietor’s power of disposition must have a lawful foundation. A registered proprietor cannot indefinitely be prevented from completing an otherwise lawful transaction merely by administrative silence or an unexplained refusal by another participant in the conveyancing process. 33. In the circumstances presented to this Court, I find that continued withholding of consent, without any stated contractual or lawful reason, unjustifiably frustrates the Applicants’ ability to deal with their registered interest. Specific performance 34. Specific performance is an equitable and discretionary remedy. It does not issue as of right merely because it has been prayed for. 35. A court considering such relief must be satisfied that the obligation sought to be enforced is sufficiently ascertainable, that the party seeking the remedy has substantially complied with its

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obligations, and that the order will not occasion injustice or compel an unlawful act. 36. In Sarich & another v Marigi & 4 others, the Environment and Land Court demonstrated the Court’s power, in an appropriate land transaction, to order completion and provide a mechanism by which the transaction could proceed notwithstanding default by a party obligated to execute the necessary documents. 37. The factual circumstances in Sarich are not identical to the present matter. That case arose out of an agreement for sale between vendor and purchaser and concerned, among other things, payment of the purchase price. 38. Here the 1st Respondent is not demonstrated to be the vendor under the sale to Ivo Johannes Marcus Dubelaar. Rather, its involvement is as head lessor whose consent is required in the conveyancing chain. 39. That distinction does not, in my view, deprive this Court of jurisdiction to make an effective order where withholding of the requisite consent has been shown to be the obstacle to completion and no lawful justification for the withholding has been advanced. I am therefore persuaded that the Applicants have established a proper basis for the principal order sought against the 1 st Respondent. Whether the Land Registrar may be directed to act 40. The Applicants seek an alternative order directing the Land Registrar to register Ivo Johannes Marcus Dubelaar if the 1 st Respondent defaults. 41. I pause to observe that the Applicants’ written submissions at certain points describe the proposed order as one directing transfer “to the Applicants.” That cannot be the operative relief, because the documentary evidence shows that the Applicants are already registered proprietors.

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42. The substantive Notice of Motion seeks registration in favour of Ivo Johannes Marcus Dubelaar. Parties are bound by their pleadings, and the Court therefore determines the relief as framed in the Notice of Motion rather than the imprecise formulation appearing in portions of the submissions. 43. The Court has considered Gatumu v Registrar of Lands Nairobi. That authority demonstrates that the Land Registrar possesses registration, statutory functions including and discretion circumstances where in facilitating the ordinary documentary process has been frustrated. 44. The Court has equally considered Lexis International Limited v ABC Investment Limited & another. In Lexis International, an arbitral award had already been adopted as a judgment and decree of the High Court. The proceedings before the Court were therefore execution proceedings. The Court's immediate task was enforcement of an existing decree. 45. The present application is different. There was no previous decree exhibited directing the 1 st Respondent specifically to consent to the Applicants’ subsequent transfer to Ivo Johannes Marcus Dubelaar. I therefore do not treat Lexis International as being on all fours with the present application. 46. The case is nevertheless useful in demonstrating a broader procedural principle: where a court issues an effective order requiring completion of a conveyancing act, it may provide a mechanism to prevent the order from being rendered nugatory through continued refusal by the party whose cooperation is required. 47. The alternative order against the Land Registrar should, however, be carefully framed. It would not be appropriate to direct the Registrar to disregard every other lawful requirement for registration. The Court does not undertake the statutory functions of the Land Registrar and should not presume that all registration

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requirements unrelated to the 1st Respondent’s consent have already been satisfied. 48. The appropriate course is therefore to make the alternative order conditional upon: default by the 1st Respondent within the period prescribed by this Court; and the Applicants and their purchaser satisfying all other lawful requirements for registration, including payment of the applicable statutory fees, duties and presentation of the requisite instruments. 49. Such an order preserves the statutory mandate of the Registrar while ensuring that the unexplained withholding of the head lessor’s consent does not defeat the judgment of this Court. Conclusion 50. Ultimately, the documentary evidence demonstrates that the Applicants are the registered proprietors of the subject leasehold interest; that the 1st Respondent previously recognized their acquisition in its capacity as head lessor; that the Applicants subsequently entered into a transaction to transfer the property to Ivo Johannes Marcus Dubelaar; and that completion has been frustrated by the absence of the 1st Respondent’s consent. 51. The 1st Respondent has not challenged the Applicants’ title, disputed the proposed transaction, pointed to any breach of the lease, identified any outstanding liability, or given any legal or contractual reason for withholding consent. 52. On the material before me, there is consequently no evidentiary basis upon which continued withholding of consent can be justified. The application therefore succeeds substantially. Orders 53. In the result, I make the following orders:

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a. The 1st Respondent, Cowrie Shell Beach Apartments Limited, shall within thirty (30) days from the date of service of this Ruling execute and/or issue the requisite Consent to Transfer and any transfer documentation requiring execution by it in respect of Subdivision Number 1642/1/MN – Flat No. A15, to facilitate the transfer by Aman Kurji and Rishma A. Kurji to Ivo Johannes Marcus Dubelaar. b. In default of compliance with Order (a) above within the stipulated thirty (30) days, the Land Registrar, Mombasa County, is hereby authorized to process and effect registration of the transfer in favour of Ivo Johannes Marcus Dubelaar without insisting upon the 1st Respondent's consent, provided that all other statutory and lawful requirements for registration have been complied with. c. For avoidance of doubt, Order (b) does not dispense with payment of stamp duty, registration fees, presentation of duly executed instruments by the transferors and transferee, or any other statutory requirement unrelated to the 1st Respondent's consent. d. Upon completion of registration, the 2nd Respondent shall issue the appropriate certificate of title and/or certificate of lease in accordance with the law. e. The Applicants shall have the costs of the application against the 1st Respondent. f. There shall be no order as to costs against the 2 nd Respondent, who was joined principally for purposes of facilitating the registration process. Orders accordingly. DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27 TH AUGUST 2026.

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……………………….. HON.E.M. MWAMUYE SENIOR RESIDENT MAGISTRATE

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