Agam Investments Limited v Voi Development Company Ltd,Chris Cannan & John Kell Campbell [2014] KEHC 1329 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 308 OF 2007

AGAM INVESTMENTS LIMITED …...............................PLAINTIFF/DECREE HOLDER

-V E R S U S-

VOI DEVELOPMENT COMPANY LTD ………….…….........…….… 1ST DEFENDANT

CHRIS CANNAN …………………………………………….…….…. 2ND DEFENDANT

JOHN KELL CAMPBELL ………………………………………....… 3RD DEFENDANT

RULING

The Court is requested by Plaintiff’s Notice of Motion dated 27th August 2014 to give effect to the judgment of this Court of 11th March 2011.  By that Judgment this Court ordered the 1st Defendant to transfer and register Plot Numbers LR Nos. 15031/41, 15031/42, 15031/118, 15031/119, 15031/120, 15031/123 and 15031/124[the properties] in favour of the Plaintiff.  It is that order in that judgment Plaintiff seeks to be effected.

Plaintiff by that Notice of Motion seeks that this Court do compel 1st Defendant to execute transfers in favour of Plaintiff of the properties, delivery to Plaintiff’s Advocates those executed transfers alongside with all other necessary documents which will enable those transfers to be registered.

This Court judgment of 11th March 2011 was appealed against by the Defendant and the Court of Appeal by its judgment of 7th February 2014 dismissed the appeal.

The 1st Defendant in its opposition to the application deponed that the orders sought were premature because 1st Defendant desired to appeal to the Supreme Court and in that regard filed an application to the Court of Appeal for a Certificate to be issued pursuant to Article 163(4) (b) of the Constitution.

That deposition by 1st Defendant was disproved by Plaintiff’s Learned Counsel’s further affidavit whereby he annexed an extracted order of the Court of Appeal of 17th June 2014 showing 1st Defendant withdrew the application for leave to file an appeal to the Supreme Court. In my view the 1st Defendant having withdrawn that application there can be no other ground for denying the Plaintiff the prayers it seeks.  It is for that reason the Plaintiff will be granted orders sought.

In conclusion therefore I do grant orders as follows:

The 1st Defendant/Judgment Debtor is hereby compelled to execute Transfers in triplicate for the Transfer of the suit premises, LR. Nos. 15031/41, 15031/42, 15031/118, 15031/119, 15031/120, 15031/123 and 15031/124 in favour of the Plaintiff/Decree Holder and to deliver to the Plaintiff/Decree Holder’s Advocates those duly executed Transfers, the Original Deed Plans for Plot Nos. LR. Nos. 15031/123 and 15031/24, the Judgment Debtor’s copy of PIN Certificate, the colour photographs of the 1st Defendant’s 2 Directors as well as the PIN Certificates for any of the 1st Defendant’s 2 Directors together with the original Grant registered as CR No. 13016/1 for purposes of registering the Transfer. In default the Deputy Registrar of this Court is hereby authorized and directed to execute the Transfers to transfer to the Plaintiff the said properties together and further the Court order that such transfers by the Deputy Registrar be effective and shall be acted upon by the Land Registrar for purposes of registering those Transfers.

Should the 1st Defendant/Judgment Debtor refuse to release the original Grant No. C.R. NO. 13016/1 and to execute the Transfer with all the documents necessary to register those Transfers the 1st Defendant’s/Judgment Debtor’s entire property comprised in Grant No. C.R. 13016/1 measuring 8369 acres shall be attached and sequestered for so long as it will take the 1st Defendant to comply and further an order is hereby made for the arrest and imprisonment of the 1st Defendant’s Directors including Mr. Eliud Timothy Mwamunga for a term of six (6) months at the Shimo La Tewa Prison Mombasa or until the 1st Defendant complies with the order issued herein.

The Plaintiff is awarded costs of the Notice of Motion dated 27th August 2014.

DATED  and  DELIVERED  at  MOMBASA this 4TH day of DECEMBER, 2014.

MARY KASANGO

JUDGE