1.The subject matter of this ruling is the motion dated 11th May, 2021 taken out by Loise Nongai kindi the defendant whereof she sought for the following orders:i.This application be certified urgent and the same be heard ex-parte in the first instance.ii.A vesting order be issued to LOISE Ngongai Kindiof ID No. xxxx in respect of land title LR no. xxxx/xx.iii.The Chief Land Registrar be ordered to register land title LR No. xxxx/xx in the name of Loise Nongai Kindias the sole proprietor of the said land and cancel the existing one.iv.All other necessary and consequential orders as the honourable court may deem just and expedient to grant.v.The costs of this application be provided for.
2.The defendant/applicant filed the affidavit she swore in support of the motion. Diocese of Ngong Trustees (Registered), the plaintiff herein opposed the motion by replying on grounds of opposition. Parties were invited to file written submissions. At the time of writing this ruling the defendant/applicant was the only party who had filed her submissions.
3.I have considered the grounds stated on the face of the motion and the facts deponed in the supporting affidavit. I have further considered the grounds of opposition plus the written submissions together with the authorities cited.
4.The history behind the instant application is short and straightforward. The plaintiff/respondent filed an action against the defendant/applicant in the High Court seeking for inter alia a declaration that it is the registered proprietor of L. R. no. xxxx/x and is entitled to the exclusive possession.
5.The defendant filed a defence and counter-claim in which she denied the plaintiff’s claim on the ground that it is time-barred by virtue of Section 7 of the Limitation of Actions Act. Through the counter-claim, the defendant sought for a declaration that she had become entitled to the suit property by way of adverse possession.
6.In his judgment delivered on 5th March, 2009, Justice J. L. A. Osiemo dismissed the plaintiff’s claim and gave judgment in favour of the defendant in terms of the counter-claim.
7.The plaintiff being dissatisfied preferred an appeal to the Court of Appeal. The Court of Appeal heard the appeal and dismissed it. The decision of the Court of Appeal has not been challenged. The defendant/ applicant had applied for registration of the aforesaid land but the same could not be effected as the Land Registrar required a vesting order.
8.The defendant has now taken the instant application seeking to have L.R no. xxxx/xx registered in her name to enjoy the fruits of her judgment. It is the submission of the defendant/applicant that she is entitled to the orders sought in the aforesaid motion since there was no further appeal preferred by the plaintiff/respondent against the decision of the Court of Appeal.
9.It is said that the Land Registrar cannot effect the transfer until a vesting order is given by the court. The plaintiff/respondent on the other hand is of the opinion that the application is bad in law and unsustainable. It is also argued by the respondent that the application lacks any factual or legal basis and therefore the orders sought are unmerited.
10.Having considered the material placed before this court plus the submissions, it is clear that the application is premised on Section 38 of the Limitation of Actions Act hence it is founded on law. It is also apparent that the plaintiff does not deny that judgment had been entered against it both at the High Court and the Court of Appeal.
11.It is also apparent that despite the defendant receiving favourable judgment, the suit parcel of land has not been registered as in her name as the proprietor absolutely. It is also evident that the Land Registrar requires a vesting order to effect the registration process.
12.In the end, I am satisfied that the aforesaid motion has merit. It is allowed thus giving rise to issuance of the following orders:i.A vesting order is issued to Loise Nongai Kindi, ID no. xxxx in respect of land title no. LR no. xxxx/xx.ii.The Chief Land Registrar is ordered to register L.R no. xxxx/xx in the name of Loise Nongai Kindi and issue a certificate of title indicating Loise Nongai Kindi as the sole proprietor of the aforesaid land and cancel the existing one.iii.Costs shall be in the cause.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022.……………………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent................................... for the 2nd Respondent.................................... for Interested Party
|NAIROBI HIGH COURT CIVIL SUIT NO. 1562 OF 1995