Housing Finance Company of Kenya Limited v Attorney General & another [2015] KECA 119 (KLR)
- Court
- Court of Appeal
- Case number
- 119
- Citation
- [2015] KECA 119 (KLR)
The appeal is allowed. The order of Kuloba, J dismissing the appellant's motion is set aside. An order of certiorari is substituted to remove into this Court and to quash the proceedings of the Resident Magistrate's Court in case No. 687 of 1991 and all the consequential orders. The provisional title issued to the 2nd respondent and registered in the Land Titles Registry in Nairobi as entry NO. IR 12012/12 is declared null and void. The 1st respondent is hereby ordered to cancel the same.
Facts
Housing Finance Company of Kenya Limited filed a Notice of Motion application seeking to cancel the registration of a vesting order and a provisional certificate of title issued by the Principal Registrar of Titles to Ngetco Investments Limited. The appellant claimed that the registration contravened the provisions of sections 28 and 46 of the Registration of Titles Act, and that the 2nd respondent was not a party to the motion but was an interested party. The 1st respondent, the Principal Registrar of Titles, argued that the registration was in compliance with the court's order.
Issues
- Whether the registration of the vesting order and the provisional certificate of title by the Principal Registrar of Titles contravened the provisions of sections 28 and 46 of the Registration of Titles Act.
- Whether the 2nd respondent was a party to the motion and if so, whether the judge erred in finding that the 2nd respondent was not a party to the motion but was an interested party.
Reasoning
The court found that the 1st respondent acted in excess of its jurisdiction by placing an advertisement containing falsehoods and based on this falsehood proceeded to issue a provisional title in favour of the 2nd respondent. The court also found that the 2nd respondent was an interested party and not a party to the motion.
Outcome
Allowing the appeal
Orders
- Order of certiorari to remove into this Court and to quash the proceedings of the Resident Magistrate's Court in case No. 687 of 1991 and all the consequential orders.
- Provisional certificate of title issued to the 2nd respondent and registered in the Land Titles Registry in Nairobi as entry NO. IR 12012/12 is declared null and void.
- The 1st respondent is hereby ordered to cancel the same.
Remedies
- Nullification of the provisional certificate of title issued to the 2nd respondent.
- Removal of the proceedings of the Resident Magistrate's Court in case No. 687 of 1991 and all the consequential orders.
Authorities cited
Legislation (3)
- Registration of Titles Act, Cap 281 of the Laws of Kenya
- Civil Procedure Act
- Civil Procedure Rules
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