Wakilii

Abubaker and Another v City Council Nairobi (Civil Appeal No. 52 of 1951)

East African Court of Appeal · [1952] EACA 52 · 1952 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya decision dismissing application for vesting order
Decision
Property vested in the appellant by court order

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A mortgagee who purchased mortgaged property at court-ordered sale is entitled to a vesting order under rule 17 where the mortgagor cannot execute an effective transfer due to unpaid municipal rates. Section 95 of the Municipalities Ordinance and section 29(1) of the Local Government (Rating) Ordinance, which prohibit transfer registration without a rates clearance certificate, do not apply to court-ordered vesting orders. It is impracticable to require the purchaser-mortgagee to pay the mortgagor's outstanding rates to obtain title.

Outcome

Property vested in the appellant by court order

Facts

The appellant, as mortgagee, obtained a court order for sale of mortgaged property and purchased it at public auction on 17 July 1950 for less than the mortgage amount. At the time of sale, the mortgagor owed over Sh. 2,000 in rates to the City Council of Nairobi. Under section 95 of the Municipalities Ordinance and section 29(1) of the Local Government (Rating) Ordinance, no transfer could be registered without a rates clearance certificate from the Town Clerk. The mortgagor, unable to pay the outstanding rates, could not execute an effective transfer to the appellant. The appellant applied to the Supreme Court under section 47 of the Trustee Ordinance and rule 17 of the Rules of Court (Mortgage Suits Consolidation) for a vesting order on the ground that it was impracticable to obtain a conveyance. The City Council intervened and opposed the application, arguing that a vesting order would defeat the protection given by section 95. The Supreme Court dismissed the application, holding it would be inexpedient to make a vesting order. The appellant appealed.

Issues

  1. Whether section 95 of the Municipalities Ordinance and section 29(1) of the Local Government (Rating) Ordinance apply to the granting of a vesting order.
  2. Whether it was impracticable for the appellant to obtain a conveyance, entitling her to a vesting order under rule 17 of the Rules of Court (Mortgage Suits Consolidation).

Orders

  • Appeal allowed.
  • Order of the Supreme Court of Kenya set aside.
  • Order made vesting in the appellant-plaintiff the property the subject-matter of the mortgage suit.
  • Costs of the appeal and the application to the Supreme Court awarded to the appellant as against the respondent.

Rules and key headnotes

Civil Procedure — Vesting Orders — Applicability of Municipal Rates Legislation
Section 95 of the Municipalities Ordinance and section 29(1) of the Local Government (Rating) Ordinance, which prohibit registration of transfers where rates are outstanding, have no application to the granting of vesting orders by the court.
Civil Procedure — Vesting Orders — Discretion to Grant
Section 47 of the Trustee Ordinance gives the court discretion to make a vesting order in prescribed circumstances, and rule 17 of the Rules of Court (Mortgage Suits Consolidation) sets out instances in which the court ought to exercise that discretion in mortgage suits.
Civil Procedure — Vesting Orders — Impracticability of Obtaining Conveyance
Where a mortgagor cannot execute an effective conveyance due to inability to pay outstanding municipal rates and obtain a clearance certificate, it is impracticable for the purchaser-mortgagee to obtain a conveyance, entitling the purchaser to a vesting order under rule 17.
Land & Property — Mortgage Sales — Liability for Rates
Outstanding municipal rates are due by the mortgagor, and no liability attaches to the mortgagee or purchaser at a court-ordered mortgage sale. It is unreasonable to expect the purchaser-mortgagee to pay the mortgagor's outstanding rates in order to obtain title.
Statutory Interpretation — Meaning of 'Conveyance' in Procedural Rules
The word 'conveyance' in rule 17 of the Rules of Court (Mortgage Suits Consolidation) means a valid transfer that will effectively transfer the property from the owner to the purchaser, not merely a document purporting to convey that is incapable of transferring the property.

Legislation cited (5)

  • Municipalities Ordinance s.95
  • Local Government (Rating) Ordinance s.29(1)
  • Transfer Ordinance s.47
  • Rules of Court (Mortgage Suits Consolidation) rule 17
  • Trustee Ordinance s.47

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Abubaker and Another v City Council Nairobi (Civil Appeal No. 52 of 1951) [1952] EACA 52 (1 January 1952)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.