[2023] KEELC 16606 (KLR)
The court found that the parties had entered into a binding consent agreement, which was adopted as a judgment of the court. The land Registrar and surveyor had already visited the property and filed their report, which was also adopted. The plaintiffs were duly served with the application but failed to respond or...
Source-derived case information.
- Citation
- [2023] KEELC 16606 (KLR)
- Parties
- Plaintiff: Aminah Kageha Bakari; Plaintiff: Mwanaisha Makoba Bakari; Defendant: Martin Karandini; Plaintiff: Joseph Martin Nyongesa; Defendant: Wasike Namianya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 141 of 2016
- Procedural Posture
- Notice of Motion Application / Ruling on Post Judgment Enforcement Application
- Outcome
- application allowed
- Judges
- EC Cherono
- Legal Topics
- Execution of Judgment, Transfer of Land, Consent Orders, Mutation and Subdivision, Court Enforcement Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aminah Kageha Bakari
Plaintiff
Mwanaisha Makoba Bakari
Plaintiff
Martin Karandini
Defendant
Joseph Martin Nyongesa
Plaintiff
Wasike Namianya
Defendant
Procedural Posture
Notice of Motion Application / Ruling on Post Judgment Enforcement Application
Legal Issues
- 1 Whether the Deputy Registrar should be authorized to execute transfer and subdivision documents on behalf of the plaintiffs to effect the judgment.
- 2 Whether the plaintiffs were properly served and failed to comply with the court's judgment and consent order.
Ratio Decidendi
The court found that the parties had entered into a binding consent agreement, which was adopted as a judgment of the court. The land Registrar and surveyor had already visited the property and filed their report, which was also adopted. The plaintiffs were duly served with the application but failed to respond or comply with the judgment by executing the necessary transfer and subdivision documents. In such circumstances, the court is empowered to authorize the Deputy Registrar to execute the required documents to give effect to its judgment and ensure enforcement. The application was therefore allowed as prayed, with costs to the applicant.
Court Disposition
application allowed
Orders
- The Deputy Registrar of the court is authorized and directed to sign and execute the mutations, application for consent to subdivide, application for consent to transfer, and transfer of land on behalf of the plaintiffs to vest ownership of 2 acres out of land parcel No E Bukusu/S Kanduyi/1208 into the name of...
- Costs of the application are awarded to the applicant.
Full Case Text
Judgment text and source record
39 paragraphs
Bakari & 2 others v Karandini & 3 others (Environment & Land Case 141 of 2016 & 11 of 2020 (Consolidated)) [2023] KEELC 16606 (KLR) (29 March 2023) (Ruling)
Neutral citation: [2023] KEELC 16606 (KLR)
Republic of Kenya
In the Environment and Land Court at Bungoma
Environment & Land Case 141 of 2016 & 11 of 2020 (Consolidated)
EC Cherono, J
March 29, 2023
Between
Aminah Kageha Bakari
1st Plaintiff
Mwanaisha Makoba Bakari
2nd Plaintiff
and
Martin Karandini
Defendant
As consolidated with
Environment & Land Case 11 of 2020
Between
Joseph Martin Nyongesa
Plaintiff
and
Wasike Namianya
1st Defendant
Aminah Kageha Bakari
2nd Defendant
Mwanaisha Makoba Bakari
3rd Defendant
Ruling
1. Vide a Notice of Motion application brought under Certificate of Urgency dated February 17, 2023, the applicant is seeking the following orders;a)(Spent)b).That the Honourable court be pleased to authorize and direct the Deputy Registrar of this Court to sign and execute the mutations, application for consent to subdivide, application for consent to transfer and transfer of land on behalf of the plaintiffs herein vesting ownership of 2 acres of land out of land parcel No E Bukusu/S Kanduyi/1208 into the names of Joseph Martin Nyongesa to give effect of the Judgment of Court dated September 19, 2022c).That the costs of this application be provided for.
2. The application I premised on six grounds apparent on the face of the said application and the affidavit of Joseph Martin Nyongesa sworn the same date.
3. In his affidavit in support of the application, the applicant deposed that after judgment was entered in his favour against the plaintiff for two (2) acres to be excised from land parcel No E Bukusu/S Kanduyi/1208, they subsequently agreed by consent on February 9, 2022 as follows;1).That the county land surveyor and land Registrar Bungoma to visit the land parcel No E Bukusu/S Kanduyi/1208. 2).The 2 acres being claimed by the defendant will be surveyed and demarcated and registered in the name of the defendant (Joseph Martin Nyongesa) as it appears in ELC No 11 of 2020(O.S)3).That the defendant Joseph Martin Nyongesa shall meet the costs of the survey.
4. The applicant further deposed that their land Registrar and the land Surveyor visited the land later and filed the report dated July 13, 2022 in court on July 19, 2022. He further stated that on September 19, 2022, the report and the consent were adopted as judgment of this Honourable Court.
5. The applicant stated that the plaintiffs are not willing to sign and execute documents to vest ownership of the two acres into his names as directed by the Court.
6. During the hearing of the application, neither the plaintiffs nor their advocate attended court. After satisfying itself that the plaintiffs were served through their duly appointed Advocates on record, the matter proceeded ex-parte.
7. I have considered the said Notice of Motion application dated February 17, 2023, the supporting affidavit, the consent order compromising the suit and the decree issued therefrom. It is not in dispute that the parties compromised this suit vide a consent agreement entered on February 9, 2022.
8. It is not also in dispute that pursuant to the compromise agreement referred herein above, the land Registrar and the land surveyor visited the suit property and compiled a report dated July 13, 2022 and filed in court on July 19, 2022. It is not in dispute as well that on September 19, 2022, the report and the consent compromising this suit were adopted as Judgment of this Honourable court.
9. It is further not in dispute that based on the undisputed facts set out hereinabove, a decree has been drawn requiring the enforcement by this court
10. Having satisfied myself that the plaintiffs/respondents were duly served through their authorized agent with this application and there being no response thereto, I find the said application unopposed and hereby allow the same as prayed with costs. Orders accordingly.
READ, SIGNED AND DELIVERED IN THE OPEN COURT AT BUNGOMA THIS 29TH MARCH, 2023HON E C CHERONOELC JUDGEIn the presence of;Applicant/Advocate - absentRespondent/Advocate – absentC/A Lusweti