Kitamaiyu Farmers Co. Ltd v Tadeo Mwaura, Peter Karanu Kahora, Michael Ndungu Mihingo, Ismail Maingi Mureithi & Nyambura Kariuki [2017] KEHC 3310 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

MILIMANI LAW COURT

HIGH COURT CIVIL CASE NO 626 OF 1982

KITAMAIYU FARMERS CO. LTD…………………………………PLAINTIFF

VERSUS

TADEO MWAURA…………………………………………………1ST DEFENDNAT

PETER KARANU KAHORA………………………………………..2ND DEFENDNAT

MICHAEL NDUNGU MIHINGO……………………………………3RD DEFENDANT

ISMAIL MAINGI MUREITHI…………………………………..…..4TH DEFENDANT

NYAMBURA KARIUKI………………………………………...……5TH DEFENDANT

RULING

The plaintiff/Applicant has moved this court by way of Notice of Motion dated the 28th February, 2017, seeking orders that the High Court Registrar do execute the transfer deed for the remaining portion of land parcel L.R. No. 4953/16/V in place of the 5th defendant.

The application is premised on the grounds on the face of the motion and its supported by the affidavit of Sylvester Kimani Gitau sworn on the 23rd February, 2015.

The summary of the facts as captured in the said affidavit are that; the plaintiff purchased land parcel No. L.R. 4953/16/V from the defendants who each held a 1/5 share of the aforesaid land.  Though the first four defendants transferred their shares to the plaintiff, a 1/5 share of the land was not transferred by the 5th defendant whom the plaintiff is not able to trace.

That the High Court had on 20th April, 1983 issued an order directed at the Registrar of the High Court to sign and execute the transfer deed in place of all the defendant but instead, they were signed by the 1st, 2nd, 3rd and 4th defendants individually but the 5th defendants did not execute the same thus the remaining share by the 5th defendant is yet to be transferred.

The applicant has sought orders to issue to the Registrar to execute the transfer deed for the remaining 1/5 portion of the aforesaid land.

The court has considered the application, the affidavit in support and the submissions by the counsel for the applicant.  The court has perused the order issued on 20th April, 1983 and I note that the land reference number is not indicated but the decree issued on the 31st January, 1983 has specifically identified the subject matter of the suit as L.R. No. 4953/16/V.  In the premises, I find and hold that the application has merits and the same is granted as prayed.

Dated, signed and delivered at Nairobi this 10th day of July, 2017

…………………

L. NJUGUNA

JUDGE

In the presence of:

…………………………………………………for the Plaintiff

………………………………………………for the 1st Defendant

………………………………………………for the 2nd Defendant

………………………………………………for the 3rd Defendant

………………………………………………for the 4th Defendant

………………………………………………for the 5th Defendant