[2019] KEELC 3724 (KLR)
The court found that a valid and unappealed judgment had already ordered the applicant to be registered as proprietor of six acres excised from parcel Kabras/Surungai/36. The respondents' refusal to sign transfer documents was unjustified, as their role as trustees did not override the court's prior order. The court...
Source-derived case information.
- Citation
- [2019] KEELC 3724 (KLR)
- Parties
- Applicant: Bondi Nafwayo (Deceased); Applicant: Enock Pondi Mufoya (Legal Rep); Respondent: Elizabeth Mukothelani; Respondent: Enos Wanjala; Respondent: Isaac Juma
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 436 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer of Land
- Outcome
- application granted
- Judges
- NA Matheka
- Legal Topics
- Land Transfer, Trusteeship, Succession, Registration of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Bondi Nafwayo (Deceased)
Applicant
Enock Pondi Mufoya (Legal Rep)
Applicant
Elizabeth Mukothelani
Respondent
Enos Wanjala
Respondent
Isaac Juma
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer of Land
Legal Issues
- 1 Whether the Deputy Registrar should be empowered to sign transfer documents for parcel Kabras/Surungai/36 to the applicant.
- 2 Whether the respondents' refusal to sign transfer documents is justified in light of the previous judgment.
- 3 Whether the daughters of the deceased should be involved in the transfer process.
Ratio Decidendi
The court found that a valid and unappealed judgment had already ordered the applicant to be registered as proprietor of six acres excised from parcel Kabras/Surungai/36. The respondents' refusal to sign transfer documents was unjustified, as their role as trustees did not override the court's prior order. The court exercised its authority to ensure compliance with its judgment by empowering the Deputy Registrar to execute the necessary transfer documents. The involvement of the deceased's daughters was not required to effectuate the judgment, as the matter had already been determined and the respondents' trusteeship did not confer discretion to disregard the court's order.
Court Disposition
application granted
Orders
- The Deputy Registrar is empowered to sign transfer documents to effect transfer of parcel Kabras/Surungai/36 to the 2nd applicant Enock Pondi Mufoya in terms of the judgment dated 10th February 2011.
- Each party is to bear its own costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA.
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 436 OF 2017
BONDI NAFWAYO (DECEASED)
ENOCK PONDI MUFOYA (LEGAL REP)......................................APPLICANTS
VERSUS
ELIZABETH MUKOTHELANI
ENOS WANJALA
ISAAC JUMA................................................................................RESPONDENTS
RULING
The application is dated 28th February 2018 and is seeking the following orders:-
1. That the Deputy Registrar of this honourable court be empowered to sign transfer documents to effect transfer of parcel of land No. KABRAS/SURUNGAI/36 to the 2nd applicant Enock Pondi Mufoya.
2. That the respondents be ordered pay the costs of this application.
It is based on the following principal grounds that the respondents have refused to sign transfer papers to have the parcel Kabras/Surungai/36 transferred to the 2nd applicant. That the parcels are still in the name of the respondents. That as the legal representative the respondents ought to transfer the same to him which they have refused. This court has authority and jurisdiction to grant the orders sought.
The 2nd and 3rd Respondents submitted that, the 1st respondent herein Elizabeth Mukothelani is since deceased and she was the administrator to the estate of the deceased. (Annexed hereto is a copy of burial permit marked EWIJ 1’). That prior the demise of the deceased herein Elizabeth Mukothelani after succession, she transferred the above mentioned parcel of land into their names since she had given birth to 5 daughters and therefore felt that they should hold in trust for her daughters. That there was a case filed in this honourable court civil case No. 98 of 2003 whereby during this case, they never got the opportunity/chance to defend themselves in court and a ruling was read and the matter was finalized. That they are not the owners of the above mentioned parcel of land but just the trustees and therefore they request that the daughters of the deceased herein Elizabeth Mukothelani be involved in this matter since they do not have any powers to carry transfer unless they have authorized them.
This court has considered the application and the submissions therein. I have perused the court file and find that on the 10th February 2011 judgement was entered in this matter in favour of the applicant Justice Lenaola J ordered that;
“I will allow the summons with the consequence that the applicant shall be registered as proprietor of (6) six acres of land to be excised out of land parcel no. Kabras/Surungai/36 and the originating summons dated 17. 12. 2003 is allowed in its entirety save that I shall make no orders as to costs since the summons is undefended.”
This decision has never been appealed and stands to date. It is the applicants submissions that the respondents have refused to comply. I find this application is merited and grant the same. I order that the Deputy Registrar of this honourable court be empowered to sign transfer documents to effect transfer in terms of the judgement in this case dated 10th February 2011. Each party is to bear its own costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 9TH DAY OF APRIL 2019.
N.A. MATHEKA
JUDGE