https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4379

Balongo & another v Municipal Council of Busia & another (Environment and Land Appeal 55 of 2010) [2026] KEELC 4379 (KLR) (10 May 2026) (Directions) Neutral citation: [2026] KEELC 4379 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Appeal 55 of 2010 L Waithaka, J May 10, 2026 Between Shem Sanya Balongo 1st Applicant William Mireri 2nd Applicant and Municipal Council of Busia 1st Respondent Alice Ikolomi Thuranira (Substituted with Regina Karambu Thuranira) 2nd Respondent Directions Directions in respect of the otice of Motion Dated 3rd October 2025 1.The Appellants/ Applicants herein filed the notice of motion dated 3rd October, 2025 under Order 22 Rule 82 and Order 51 Rule 1 of the Civil Procedure Rules seeking an order that the Land Registrar Busia County and Chief Executive Officer, National Land Commission, (CEO, NLC) do show cause why the decree holder herein has not been registered as the owner of Plot No Busia / Municipality/ 527 (suit plot) on cancellation of the 2nd respondent’s name from the register. 2.The application is premised on the grounds on the face of the application and the supporting affidavit of Shem Sanya Balongo, sworn on 3rd October 2025. He avers that after judgement was delivered on 26th January 2023, he was issued with a decree on 4th April 2023 ordering that registration of the lease in favour of 2nd respondent be cancelled and the 1st Appellant be registered as the owner of plot No. Busia Municipality/ 523; that the 2nd respondent to avail the original certificate of lease for the suit plot within 60 days to facilitate registration of the land in the name of the 1st appellant. In default, and after expiry of 60 days, production of the original title deed be dispensed with. 3.It is his contention that the Land Registrar was served with the decree and cancelled the name of the 2nd respondent in the register but the 2nd respondent did not surrender the original certificate of lease. He blames the Land Registrar and the CEO, NLC for failing to fully comply with the court order and register the 1st appellant as owner of the suit plot. 4.In reply and opposition to the application, the 2nd respondent filed a replying affidavit sworn on 10th March 2026. She deposes that there was no mistake or inadvertence on her part towards failure to register the 1st appellant as owner of the suit plot. She explains that she could not surrender the original certificate of lease to the Land Registrar as ordered by the court because the title is in possession of Fina Bank Limited which has a legal charge registered over the suit plot and the bank has not discharged it, a fact the applicant is well aware of. 5.She further deposes that the application is nonstarter, misconceived, frivolous and vexatious and should be dismissed for the reason that 1st and 2nd objectors were not parties in the suit and as such, the orders sought can only apply to parties in the main suit and not them. 6.I have carefully read and considered the application, the response filed by the 2nd respondent in the main suit, the judgment of the court, decree, the issues of fact and law raised in the application and the law applicable. 7.I note that the replying affidavit by the 2nd respondent raises issues that need to be addressed before the court can make an informed decision on the application. The application seeks to compel the Land Registrar and CEO, NLC to effect transfer to the applicant as ordered by the Court. The Land Registrar and CEO, NLC were not parties to the suit. While ordinarily the Land Registrar is under a legal obligation to ensure enforcement of court orders served on him, according to the averments in the affidavit sworn in response to the application by the 2nd defendant in the main suit, it appears that at the time the judgement and decree in respect thereof of the suit plot was delivered, the title to the suit plot had an encumbrance registered in favour of a third party. 8.It appears the third party was not made a party to defend its interests in the suit plot. The legal principle is that when land/ property is charged to a bank, the bank has a legal interest which is protected by Section 90 to 93 of the of the Land Act. A court cannot make orders that affect the bank’s rights as chargee without the bank being joined as a party. If it does, the order is a nullity. In that regard, see the cases of DT Dobie & Company (Kenya) Ltd V Muchina 2KLR 1 and Kenya Commercial Bank Ltd v Kenya planters Co-operative Union Ltd 2017 eKLR. 9.In the circumstances, this court will not issue the orders sought without participation of the third party who will be affected by orders issued by this court for compellance. Consequently, I direct the applicant to serve the application on the bank or whichever third party might have an interest in the suit post judgement or before judgement and was not a party to the suit. Upon service, such person shall file their response to the application within 14 days of service. 10.The matter to be mentioned on 6th July 2026 to conform compliance and for further directions. DIRECTIONS DATED, SIGNED AND DELIVERED VIRTUALLY AT BUSIA THIS 10TH DAY OF MAY, 2026.L. N. WAITHAKAJUDGEIn the presence of;Mr Ouma holding brief for J. V. Juma for the ApplicantN/A for the Respondent and ObjectorsCourt Assistant; Tracy