Case ID:168058

Margaret Wangui Gatero Suing as the Administrator of the Estate of Grace Wambui Gatero, Deceased v Felix Mureithi; Paul Mutua Makenzi & 2 others (Third Party) [2020] eKLR

Case Metadata

Case Number:

Environment and Land Suit 715 of 2012

Parties:

Margaret Wangui Gatero Suing as the Administrator of the Estate of Grace Wambui Gatero, Deceased v Felix Mureithi; Paul Mutua Makenzi, Margaret Makenzi & Haile Ikubu (Third Party)

Date Delivered:

17 Dec 2020

Case Class:

Civil

Court:

Environment and Land Court at Nairobi

Case Action:

Ruling

Judge(s):

Samson Odhiambo Okong'o

Citation:

Margaret Wangui Gatero Suing as the Administrator of the Estate of Grace Wambui Gatero, Deceased v Felix Mureithi; Paul Mutua Makenzi & 2 others (Third Party) [2020] eKLR

Court Division:

Environment and Land

County:

Nairobi

Extract:

0

Case Outcome:

Application dismissed with costs in the cause.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC SUIT NO. 715 OF 2012

MARGARET WANGUI GATERO

Suing as the Administrator of the

Estate of

GRACE WAMBUI GATERO, DECEASED......................PLAINTIFF

VERSUS

FELIX MUREITHI...........................................................................DEFENDANT

AND

PAUL MUTUA MAKENZI....................................................1

ST

THIRD PARTY

MARGARET MAKENZI......................................................2

ND

THIRD PARTY

HAILE IKUBU.......................................................................3

RD

THIRD PARTY

RULING

On 30

th

October, 2014 the plaintiff, the defendant and the 1

st

and 2

nd

third parties entered into a consent compromising this suit on the following terms;

1. That the plaintiff be and is hereby granted vacant possession of the property known as L.R No. 14870/411 owned by the third parties forthwith.

2. That the third parties do process the requisite title documents to the said property within the next ninety (90) days and surrender the same to the defendant.

3. That the third parties do execute and surrender the transfer of the said property in favour of the plaintiff and release/surrender the same to the defendant.

4. That the plaintiff does exchange the title and executed transfer in respect of the property known as L.R No. 14870/404 with the documents obtained from the third parties in respect of the property known as L.R No. 14870/411 with the defendant.

5. That the matter be mentioned on 19

th

March, 2015 to ascertain compliance and for any further orders by the court or with parties’ consent.

The 1

st

and 2

nd

third parties were unable to comply with their obligations under the said consent. It turned out that L.R No. 14870/411 was not registered in the name of the 1

st

and 2

nd

third parties and as such they could not transfer the same to the plaintiff. L. R. No. 14870/411 was at all material times registered in the name of the 3

rd

third party who was not a party to the suit as at the time the said consent was recorded in court.

Due to their inability to comply with the terms of the said consent, the 1

st

and 2

nd

third parties filed an application by way of Notice of Motion dated 24

th

September, 2019 seeking the following main orders;

“1. That the terms of the consent order dated 15

th

March, 2015 be varied in the following terms:

(a) That a provisional title in respect of L.R No. 14870/411 be issued by the Registrar of titles

(b) The Deputy Registrar Environment and Land Court Division as statutorily mandated do sign the transfer documents facilitating transfer of L.R. No. 13870/411 in favour of the plaintiff.

2. That a consent bearing agreed terms be entered into as a binding order of the court.”

The application was brought on the grounds that the consent order made on 15

th

March, 2015 was unenforceable because the 1

st

and 2

nd

third parties had purchased L.R No. 14870/411 from Haile Ikubu, the 3

rd

third party herein who had left the country before transferring the property to the 1

st

and 2

nd

third parties and as such the 1

st

and 2

nd

third parties were unable to transfer the same property to the plaintiff in terms of the said consent.

When the 1

st

and 2

nd

third parties’ application dated 24

th

September, 2019 came up for hearing, the court pointed out to the advocate for the 1

st

and 2

nd

third parties that the orders sought in the application were likely to affect Haile Ikubu, the 3

rd

third party who was the registered owner of the property in issue and who was by then not a party to the suit.

On 5

th

November, 2019, the 1

st

and 2

nd

third parties brought an application by way of Notice of Motion dated 4

th

November, 2019 seeking an order for the joinder of Haile Ikubu as a party to the suit and for him to be served with the court documents by way of substituted service. On 9

th

March, 2020, the court made an order joining Haile Ikubu to this suit as 3

rd

third party and directed the 1

st

and 2

nd

third parties to serve him with a third party notice. Following that order, the 1

st

and 2

nd

third parties took out a third party notice dated 10

th

March, 2020 and served the same upon Haile Ikubu, the 3

rd

third party herein by registered post on 11

th

March, 2020. Haile Ikubu (“the 3

rd

third party”) did not respond to the third party notice by the 1

st

and 2

nd

third parties.

Order 1 rule 19 of the Civil Procedure Rules provides that where a third party fails to enter appearance and the party who served him with a third party notice suffers judgment as a result of that default, such party after satisfying the decree against him shall be entitled to judgment against the third party to the extent claimed in the third party notice. In the present case, after the 3

rd

third party failed to enter appearance to the third party notice that was served upon him by the 1

st

and 2

nd

third parties, no action was taken to prosecute the suit as between the plaintiff, the defendant and the 1

st

and 2

nd

third parties. Instead, the 1

st

and 2

nd

third parties informed the court that they wished to prosecute their application dated 24

th

September, 2019 in which they had sought the variation of the terms of the consent that was entered into between them, the plaintiff and the defendant. I have already highlighted the grounds upon which the said application was brought. It is that application which is the subject of this ruling.

The application was brought under Section 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya and order 51 of the Civil Procedure Rules. When the application came up for hearing on 12

th

November, 2020, the advocate appearing for the 1

st

and 2

nd

third parties informed the court that the application had been served upon all the parties and that the same was not opposed. The advocate for the defendant informed the court that the defendant had no objection to the application while the advocates for the plaintiff did not attend court for the hearing of the application.

I have considered the application together with the affidavit filed in support thereof. I am not convinced that the court has jurisdiction to do what it has been called upon to do in the present application. The consent of 15

th

March, 2015 was between the plaintiff, the defendant and the 1

st

and 2

nd

third parties. Under the consent, the 1

st

and 2

nd

third parties undertook to transfer L.R No. 14870/411 to the plaintiff. As I have already mentioned, the 1

st

and 2

nd

third parties were unable to fulfil their obligations under the said consent because they were not the registered owners of L.R No. 14870/411 and as such could not transfer the same to the plaintiff. The property as I have mentioned was and I believe still is registered in the name of the 3

rd

third party who was not a party to the said consent. The application before me has been brought with the intention of bypassing the huddle that was being faced by the 1

st

and 2

nd

third parties by having the court ordering the Registrar of Titles to issue a provisional title in respect of L.R No. 14870/411 which the 1

st

and 2

nd

third parties appear not to have had in their possession and for the Deputy Registrar of this court to execute the transfer of the said property in favour of the plaintiff instead of the 1

st

and 2

nd

third parties who were to do so under the said consent. There is a laid down procedure for applying for a provisional title in the event that one is lost. The application has to be made by the owner of the property or his representative. The court also has power in appropriate cases to order that such title be issued at the instance of any party even where he is not the owner. The court also has power to order its officers to execute any instrument on behalf of any party where such party has failed to do so after being ordered to by the court to execute such document.

What the court has been called upon to do is to make orders for the issuance of a provisional title and the execution of a transfer by an officer of the court without any basis merely because the parties have agreed on such orders being issued. I believe that the court cannot endorse any consent by the parties. The effect of the orders sought by the 1

st

and 2

nd

third parties if granted would be to compel the Registrar of Titles to issue a provisional title for L.R No. 14870/411 to a party who is not an owner of the property and without a proper basis having been laid for such action to be taken. The order will also compel an officer of this court to execute an instrument of transfer on behalf of an owner of land who in this case is the 3

rd

third party without a proper basis having been laid. The 3

rd

third party who is the registered owner of the L.R No. 14870/411 was not a party to the consent order of 15

th

March, 2015. No order has been issued by the court directing the 3

rd

third party to execute an instrument of transfer in favour of the plaintiff in default of which the court could use its officers to execute the instrument. The 3

rd

third party is new in the suit having been joined to the suit on 9

th

March, 2020. Even if he has not entered appearance, the court cannot purport to endorse a consent that would affect his interest. Due process must be followed before a court can issue orders against a party to a suit even those who have not entered appearance. The court cannot determine the 1

st

and 2

nd

third parties’ claim against the 3

rd

third party through a consent order to which the 3

rd

third party is not a party to. I am of the view that the plaintiff, the defendant and the 1

st

and 2

nd

third parties have a right to compromise their claims against each other. However as concerns the 3

rd

third party who has not entered appearance, the claim against him has to be proved.

I have said enough to show that the 1

st

and 2

nd

third parties’ application dated 24

th

September, 2019 is not for granting. The application is accordingly dismissed with costs to be in the cause. On the courts own motion, I order that the plaintiff shall further amend her amended plaint dated 12

th

February, 2019 in line with the orders made on 9

th

March, 2020 to indicate Paul Mutua Makenzi and Margaret Makenzi as 1

st

and 2

nd

third parties respectively and Haile Ikubu as 3

rd

third party. The amendment shall be effected within 21 days from the date hereof.

Delivered and Dated at Nairobi this 17

th

day of December 2020

S. OKONG’O

JUDGE

Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of:

N/A for the Plaintiff

Mr. Kariba Mbabu for the Defendant

N/A for the 1

st

and 2

nd

Third parties

Ms. C. Nyokabi-Court Assistant