MAREVA COMPANIA NAVIERA SA vs. INTERNATIONAL BULKCARRIERS LTD CASE BRIEF

By: Okinyo Ronald Makonjio

MAREVA COMPANIA NAVIERA SA vs. INTERNATIONAL BULKCARRIERS LTD (The Mareva case)

Facts

The applicant, Mareva Compania Naviera S.A. vide a writ on 25^th June 1975 claimed against the respondent, International Bulkcarriers S.A., for unpaid hire and damages for repudiation of a charter party. Through an ex-parte application, Donaldson J granted an injunction in favour of the applicants until 17.00 hours on 23^rd June restraining International Bulkcarriers (the charterers) from removing or disposing out of the jurisdiction moneys standing to the credit of the charterers, account at a London bank. Mareva Compania Naviera (the ship-owners) appealed against Donaldson J’s refusal to extend the injunction beyond 17.00 Hrs. on 23^rd June 1975.

Issue: Whether the court should grant an ex-parte order sought by the plaintiff to restrain the defendant dispersing/ disposing his assets.

Holding: The court granted the ad personam order/ injunction pursuant to the 1925 Act which stated: ‘A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient.’

Rationale: The order could be made even though it dealt with assets in which the plaintiff claimed no direct right.

Judgment: Appeal allowed. Injunction continued.

TRANSFORMATION OF THE LONG TERM LEASES IN LIGHT OF THE NEW SECTIONAL PROPERTIES ACT, 2020

By: Okinyo Ronald Makonjio

 LONG TERM LEASES TRANSFORMATIONS IN LIGHT OF THE NEW SECTIONAL PROPERTIES ACT, 2020

Introduction

Leases as a tenure has been adequately defined and captured in the Kenyan land laws. It has also further been undeniably facing transformations for a while now. It can be stated that the transitions as required by the current land laws more particularly the Sectional Properties Act, 2020 of Kenya is taking slow progress but eventually will get there. This paper thus is an assessment of some of the changes introduced by the Sectional Properties Act, 2020 but with key emphasis on the long term leases.

The long term periodical requirement

The new Sectional Properties Act of 2020 brought a shift in the long-term leasehold tenure in relation to converting the units to sectional units. The Act introduces a 21-year period as a minimum for the conversion of property into sectional units contrasted to the repealed period of 45 years, this therefore maintains the long term lease status.

Long terms leases is one of the types of leases that is now having a migration to align itself with the current laws. The detailed analysis in this paper is majorly going to focus on the changes that are currently in place or anticipated to.

Pursuant to the recent resolution adopted by the Law Society of Kenya (LSK) dated 18^th May, 2021, the major points of discussion touched on the new migration requirements on the existing titles under the long-term leases in sectional properties, the already ongoing transactions, partial registered developments and those new developments where no lease has been registered.

Periodical ultimatum for conversion of long-term leases/ sub leases in sectional properties

With the recent enactment of the Sectional Properties Act 2020 repealing that of 1987, property holders including those on a long-term lease/ sublease period have been given a two-year ultimatum to ensure that they get to register their title to conform with the current Sectional Properties Act, 2020. Further, the title requirements will need to comply with the Land Registration Act, 2012 which was not necessarily the case with the 1987 statute. The other changes brought about in connection with leasehold interest is that of the requirement for Geo-referencing which has now been put as a mandatory requirement to make use of the topographical technology in the current dispensation.

The Ministry of Lands and Physical Planning (MOLPP) recently launched National Lands Information Management System (NLIMS) which is going to be the main platform for the digitization of land entries and records, from searches to registration of transactions, its going to be the major player in this field.

The following steps shall be taken for land parcels within Nairobi which has taken the immediate steps to ensure the fruition of the new regulations:

-       Upon presenting the registration instrument, the MOLPP shall ensure that the land is Geo-referenced with costs borne by them;

-         The sectional plan as it was shall then be registered and units opened for each unit;

-        The records as opened shall then be uploaded to the NLIMS platform for its data keeping and digitization purposes and eventually continue with the registration process to the final steps of issuance of certificate of lease or title.

As for the lands outside Nairobi falling within the repealed land registration regimes, a transition period is given as they shall continue applying the old methods as per the repealed act but shall have a transition period to upgrade and update the same to meet the current laws threshold as stated above. This requirement has been captured under section 13(2) of the Sectional Properties Act, 2020.

The ongoing or pending transactions

This generally relate to the documents that had been lodged in the registry pending registration, those which stamp duty had already been paid for or presented for stamp duty assessment.

The documents that had been presented in the registry but not dealt with will now be completed using the new registration system.  The same applies for those to which stamp duty had already been paid for or presented for stamp duty assessment. The registrar shall however be at liberty to ensure that the documents are compliant with the current requirements and can therefore summon the parties doing the registration and seek for further particulars or requirements.

Where no lease has been presented for registration

With the NLIMS platform being a fully fledged program hinted to ease the registration process, the need to ensure conformity from the word go is of essence, therefore the leases that have not yet been lodged will therefore be lodged pursuant to the current system as introduced in the 2020 Sectional properties Act.

 

Conclusion

The long-term leases requirement for sectional units conversion has retained but never the less the prescribed period changing drastically, this is to ease the burden and open up the opportunities of doing or converting properties into sectional properties but still maintaining the long term leasehold requirement. The recent launch of NLIMS platform is going to be of much probative value considering the prevailing COVID situation. Weaknesses and challenges are bound to happen as it is a technological platform but the future looks brighter with this program as the merits seem to outdo ant anticipated demerits. Further, the new changes on the long term leases are going to conform with the substantive and procedural land laws legislation being the Land registration Act, 2012 and the Land Act, 2012 which thus assures more harmony and assuredness for the system.

ACQUIRING LAND THROUGH ADVERSE POSSESSION IN KENYA

By: Okinyo Ronald Makonjio

 

The doctrine of adverse possession is one that grants rights or title to land owned by a person to the adverse possessor subject to the satisfaction of the common law requirements.

The common law requirements have been adopted and principally recognized by courts in Kenya to confer the rights to the adverse possessor.

The common law requirements

The following are the universally applicable requirements:

• That the possession and utilization of the land was open and notorious meaning that it should be obvious and open to the registered owner.
• That the possession and utilization should be exclusive to the person claiming the accumulated rights over the land.
• That the occupation ought to be hostile and adverse to the registered proprietor of the land.
• The statutory period of 12 years should be satisfied and
• The statutory period should have been continuous and uninterrupted.

Statutory connotations of adverse possession in Kenya

The main governing statutes are the Limitation of Actions Act Cap 22 and the different laws on land and its administration

Under section 6 of the Limitation of Actions Act, an action to recover land is capped at 12 years. Meaning that one has 12 years to recover land with which an adverse possessor is in possession and utilisation failure to which the ownership rights may or shall accrue to the adverse possessor.

In addition to the above, section 17 of the Limitation of Actions Act does provide for the title getting extinguished upon the lapse of 12 years. See also sections 13, 37 and 38.

Further, adverse possession has been acknowledged under section 28(h) of the Land Registration Act, 2012 as an overriding interest in and thus has the capability of extinguishing the registered owners rights in the subject land.

Jurisprudence in Kenya on Adverse Possession

For purposes of this article, I will highlight one case being Wilson Njoroge Kamau v Nganga Muceru Kamau [2020] eKLR, in this case, the plaintiff instituted a suit in the form of Originating Summons against the defendant for purposes of declaring him (plaintiff) to being the legal owner of suit property land parcel Number LOC2/KANGARI/506. He claimed to have been in possession and utilisation of the suit property since 1971-2005 and thus had acquired rights over the suit property. The appellate court went further to deny the defendant an injunctive relief since as at the time of seeking the injunction, the plaintiff was the one in possession of the land and granting the injunction would have resulted in the eviction of the plaintiff as a consequence. The court granted the plaintiff the rights over the land on account of adverse possession.

The court relied on the following cases which are worth having a look at of Wanyoike v Kahiri [1979] KLR, Joseph Gahumi Kiritu Vs Lawrence Munyambu Kabura CA No 20 OF 1993 and Kweyu v Omuto, C A Civ Appeal 8 of 1990.

Conclusion

Having a certificate to title is the indefeasible proof of ownership as it is well stated under the Land Registration Act, 2012. However, this is not absolute as it is subject to some limitations, principles and doctrines which in this case include the doctrine of adverse possession.