BRIEF FACTS
This is a ruling in respect the application dated 9th December, 2024 filed by the Plaintiff/Applicant seeking for the following orders: -
a) Spent.
b) THAT this Honourable court be pleased to grant leave to the firm of M/A KATAKA WAMBU & KHISA ADVOCATES to come on record for the Plaintiff/Applicant in place of the firm of M/S KONOSI & COMPANY ADVOCATES pursuant to the consent of the advocates filed herewith.
c) THAT this court be pleased to enjoin the PRINCIPAL LAND REGISTRAR- NAKURU as a party to this suit (Respondent) for purposes of this Application and to order the Land Registrar- Nakuru to execute the decree of this court dated 22nd March, 2021.
d) Spent.
e) THAT this Honourable court be pleased to issue an order to lift, vacate and/or remove all cautions, restrictions and/or encumbrances placed on the register over the subject parcel of land NAKURU MUNICIPALITY BLOCK 11/195.
f) THAT an order to issue directing the Respondent (PRINCIPAL-LAND REGISTRAR NAKURU) to register the subject parcel of land described as NAKURU MUNICIPALITY BLOCK 11/195 in the name of the Applicant (MAGETA ENTERPRISES LIMITED) and to issue a new Certificate of Lease as per this Honourable court’s decree given in this matter on 17th October, 2020 and dated 22nd March 2021.
g) THAT costs of this Application be provided for.
The Application was based on grounds set out and supported by the Affidavit of KENNETH MAWEU KASINGA the director of the Plaintiff/Applicant herein sworn on 9th December, 2024.
He stated that judgment was delivered on 17th October, 2020 by Mutungi J and the decree issued on 22nd March, 2021. He further stated that the Defendant filed an appeal which judgment was delivered on 15th March, 2024 dismissing the same with costs. He stated that since then he applied to the Respondent for issuance of the search to confirm the contents of the register in order to commence execution process of the decree in vain. He stated that he made an application on 7th November, 2024 for the search but he was informed that the same could not be issued since there was an inhibition in place. He stated that he wanted to know if there was any encumbrance before he could apply for registration and issuance of a new Certificate of Lease. That the registrar informed him to avail the original title but he could not do so since the title got lost sometime in 2021. He stated that for replacement of the certificate of lease, it is a requirement to procure a search which has been frustrated and denied by the Respondent. He further stated that this court can order the Respondent to issue the official search and issue a new lease in the Applicant’s name. He stated that execution of the decree has been problematic due to the frustrations by the Respondent to issue an official search and enforce the decree.
Response
The Respondent filed its replying affidavit sworn by one Sheila Mwei on 18th February, 2025. She denied the allegations by the Applicant and averred that the register for the suit land was opened on 25th October, 1995.
Submissions
Counsel for Plaintiff/Applicant filed his submissions dated the 19th February, 2025 where he identified two issues for determination. The first issue was whether the Principal Land Registrar-Nakuru can deny the Applicant issuance of Certificate of Official Search over the subject property. He relied on Section 86(1)(2)(3) and (4) of the Land Registration (General) Regulations, 2017 and submits that the right to a certificate of official search is enshrined in the said regulation and a mere denial of the said right without any justification contravenes the said right. He also relied on the case of Land Registrar, Nakuru Land Registry Kimari & 2 Others (Exparte Applicant) (Administrators of the Estate of the late Kenneth Kimari Kahura) (Environment and Land Judicial Review Case E3 of 2021) [2023] KEELC 17298 (KLR)
It was counsel’s submission that there was no valid reason to deny the Applicant issuance of the search and thus it is imperative for the court to order vacation of the restrictions placed on the register.
The second issue was whether it is legal and proper for the Principal Land Registrar-Nakuru to refuse to conduct an official search without issuing any explanation whatsoever and thereby frustrate the Plaintiff/Applicant by denying her the entitled fruits of the judgment in this suit. He submits that the denial to issue an official search has since frustrated the Plaintiff/Applicant. He submits that a successful party should not be impeded from enjoying fruits of his/her judgment. He argues that the consequence of a judgment and decree is that it has defined the rights of a party with definitive conclusion. Counsel relied on the case of Samvir Trustee Limited V Guardian Bank Limited Civil Case 795 of 1997 [2007] eKLR and submits that a successful party is prima facie entitled to the fruits of his judgment. He submits that the Land Registrar has become an impediment and frustrated the Applicant’s rights to execute the decree and in turn enjoy the benefits of its judgment.
In conclusion, he submits that with the need to replace the certificate of lease, it is only fair and just that the court allows the application as prayed.
Analysis and Determination
This court has considered the application, replying affidavit and submissions and is of the view that the main issue for determination is whether the application is merited. The Plaintiff/Applicant sought for among others an order compelling the Principal Land Registrar issue a new Certificate of Lease as per the court’s decree dated 22nd March, 2021. The Plaintiff/Applicant argues that before registration of the new lease certificate, it needed to obtain an official search which upon application, the same has never been issued. The Respondent on the other hand denied the allegations and annexed copies of the white and green card.
Courts should not issue orders in vain and the said orders should be complied with. Moreover, successful litigants must fully enjoy the fruits of their judgments.
I do find the application merited and do order the lifting, vacation and/or removal of all cautions, restrictions and/or encumbrances placed on the register over the subject parcel of land Nakuru Municipality Block 11/195 by the County Land Registrar or the Principal-Land Registrar Nakuru
I do order direct the County Land Registrar or the Principal-Land Registrar Nakuru to register the subject parcel of land described as Nakuru Municipality Block 11/195 in the name of the Applicant (Mageta Enterprises Limited) and to issue a new Certificate of Lease as per this Honourable court’s decree given in this matter on 17th October, 2020 and dated 22nd March 2021. That each party to bear own costs.
This is a ruling in respect the application dated 9th December, 2024 filed by the Plaintiff/Applicant seeking for the following orders: -
a) Spent.
b) THAT this Honourable court be pleased to grant leave to the firm of M/A KATAKA WAMBU & KHISA ADVOCATES to come on record for the Plaintiff/Applicant in place of the firm of M/S KONOSI & COMPANY ADVOCATES pursuant to the consent of the advocates filed herewith.
c) THAT this court be pleased to enjoin the PRINCIPAL LAND REGISTRAR- NAKURU as a party to this suit (Respondent) for purposes of this Application and to order the Land Registrar- Nakuru to execute the decree of this court dated 22nd March, 2021.
d) Spent.
e) THAT this Honourable court be pleased to issue an order to lift, vacate and/or remove all cautions, restrictions and/or encumbrances placed on the register over the subject parcel of land NAKURU MUNICIPALITY BLOCK 11/195.
f) THAT an order to issue directing the Respondent (PRINCIPAL-LAND REGISTRAR NAKURU) to register the subject parcel of land described as NAKURU MUNICIPALITY BLOCK 11/195 in the name of the Applicant (MAGETA ENTERPRISES LIMITED) and to issue a new Certificate of Lease as per this Honourable court’s decree given in this matter on 17th October, 2020 and dated 22nd March 2021.
g) THAT costs of this Application be provided for.
The Application was based on grounds set out and supported by the Affidavit of KENNETH MAWEU KASINGA the director of the Plaintiff/Applicant herein sworn on 9th December, 2024.
He stated that judgment was delivered on 17th October, 2020 by Mutungi J and the decree issued on 22nd March, 2021. He further stated that the Defendant filed an appeal which judgment was delivered on 15th March, 2024 dismissing the same with costs. He stated that since then he applied to the Respondent for issuance of the search to confirm the contents of the register in order to commence execution process of the decree in vain. He stated that he made an application on 7th November, 2024 for the search but he was informed that the same could not be issued since there was an inhibition in place. He stated that he wanted to know if there was any encumbrance before he could apply for registration and issuance of a new Certificate of Lease. That the registrar informed him to avail the original title but he could not do so since the title got lost sometime in 2021. He stated that for replacement of the certificate of lease, it is a requirement to procure a search which has been frustrated and denied by the Respondent. He further stated that this court can order the Respondent to issue the official search and issue a new lease in the Applicant’s name. He stated that execution of the decree has been problematic due to the frustrations by the Respondent to issue an official search and enforce the decree.
Response
The Respondent filed its replying affidavit sworn by one Sheila Mwei on 18th February, 2025. She denied the allegations by the Applicant and averred that the register for the suit land was opened on 25th October, 1995.
Submissions
Counsel for Plaintiff/Applicant filed his submissions dated the 19th February, 2025 where he identified two issues for determination. The first issue was whether the Principal Land Registrar-Nakuru can deny the Applicant issuance of Certificate of Official Search over the subject property. He relied on Section 86(1)(2)(3) and (4) of the Land Registration (General) Regulations, 2017 and submits that the right to a certificate of official search is enshrined in the said regulation and a mere denial of the said right without any justification contravenes the said right. He also relied on the case of Land Registrar, Nakuru Land Registry Kimari & 2 Others (Exparte Applicant) (Administrators of the Estate of the late Kenneth Kimari Kahura) (Environment and Land Judicial Review Case E3 of 2021) [2023] KEELC 17298 (KLR)
It was counsel’s submission that there was no valid reason to deny the Applicant issuance of the search and thus it is imperative for the court to order vacation of the restrictions placed on the register.
The second issue was whether it is legal and proper for the Principal Land Registrar-Nakuru to refuse to conduct an official search without issuing any explanation whatsoever and thereby frustrate the Plaintiff/Applicant by denying her the entitled fruits of the judgment in this suit. He submits that the denial to issue an official search has since frustrated the Plaintiff/Applicant. He submits that a successful party should not be impeded from enjoying fruits of his/her judgment. He argues that the consequence of a judgment and decree is that it has defined the rights of a party with definitive conclusion. Counsel relied on the case of Samvir Trustee Limited V Guardian Bank Limited Civil Case 795 of 1997 [2007] eKLR and submits that a successful party is prima facie entitled to the fruits of his judgment. He submits that the Land Registrar has become an impediment and frustrated the Applicant’s rights to execute the decree and in turn enjoy the benefits of its judgment.
In conclusion, he submits that with the need to replace the certificate of lease, it is only fair and just that the court allows the application as prayed.
Analysis and Determination
This court has considered the application, replying affidavit and submissions and is of the view that the main issue for determination is whether the application is merited. The Plaintiff/Applicant sought for among others an order compelling the Principal Land Registrar issue a new Certificate of Lease as per the court’s decree dated 22nd March, 2021. The Plaintiff/Applicant argues that before registration of the new lease certificate, it needed to obtain an official search which upon application, the same has never been issued. The Respondent on the other hand denied the allegations and annexed copies of the white and green card.
Courts should not issue orders in vain and the said orders should be complied with. Moreover, successful litigants must fully enjoy the fruits of their judgments.
I do find the application merited and do order the lifting, vacation and/or removal of all cautions, restrictions and/or encumbrances placed on the register over the subject parcel of land Nakuru Municipality Block 11/195 by the County Land Registrar or the Principal-Land Registrar Nakuru
I do order direct the County Land Registrar or the Principal-Land Registrar Nakuru to register the subject parcel of land described as Nakuru Municipality Block 11/195 in the name of the Applicant (Mageta Enterprises Limited) and to issue a new Certificate of Lease as per this Honourable court’s decree given in this matter on 17th October, 2020 and dated 22nd March 2021. That each party to bear own costs.