[2021] KEELC 2554 (KLR)
The court found that the Defendant's application was merited and necessary to give effect to the decree previously issued, which required the transfer of land parcel Kirimukuyu/Kiria/251 from the Plaintiff to the Defendant and his family members. The Plaintiff's refusal to surrender the original title deed was...
Source-derived case information.
- Citation
- [2021] KEELC 2554 (KLR)
- Parties
- Plaintiff: Charles Mukoma Kimaru; Defendant: Johnstone Muchomba Kagayu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 81 of 2014
- Procedural Posture
- Notice of Motion / Ruling on Post Judgment Application
- Outcome
- Application allowed with costs to the Plaintiff.
- Legal Topics
- Trusts in Land, Registration of Titles, Execution of Decree, Dispensing With Title Deed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mukoma Kimaru
Plaintiff
Johnstone Muchomba Kagayu
Defendant
Procedural Posture
Notice of Motion / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the court should order the Land Registrar to dispense with the production of the original title deed for registration of transfer in execution of a decree.
- 2 Whether the Plaintiff's opposition based on intended appeal and ongoing settlement discussions is sufficient to defeat the application.
Ratio Decidendi
The court found that the Defendant's application was merited and necessary to give effect to the decree previously issued, which required the transfer of land parcel Kirimukuyu/Kiria/251 from the Plaintiff to the Defendant and his family members. The Plaintiff's refusal to surrender the original title deed was stalling the registration process. The court held that the Plaintiff's stated intention to appeal and ongoing settlement discussions did not constitute sufficient grounds to deny the application, as no stay of execution had been granted and the decree remained valid. Accordingly, the court exercised its power under Section 31 of the Land Registration Act, 2012 to order the Land...
Court Disposition
Application allowed with costs to the Plaintiff.
Orders
- The County Land Registrar, Nyeri is directed to dispense with the production of the title deed for Land Reference Number Kirimukuyu/Kiria/251 issued to the Plaintiff on 10th September, 2013.
- Costs of the application to be borne by the Plaintiff.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NYERI
ELC NO. 81 OF 2014
(FormerlyNYERI CMCC No. 422 of 2013)
CHARLES MUKOMA KIMARU.................... PLAINTIFF
-VERSUS-
JOHNSTONE MUCHOMBA KAGAYU.......DEFENDANT
RULING
1. By a notice of motion dated 25th March, 2021 brought under the provisions of Section 31 of the Land Registration Act, 2012andOrder 51 rule 1 of the Civil Procedure Rules, 2010, the Defendant through the firm of Kebuka Wachira and Company Advocates sought the following orders:
(a) That the Honourable court be pleased to issue an order directing the County Land Registrar, Nyeri to dispense with the production of the title deed for Land Reference Number Kirimukuyu/Kiria/251 issued to the Plaintiff on 10th September, 2013.
(b) That costs of this application be borne by the Respondent.
2. The application was based on the grounds set out on the face of the application and the supporting affidavit sworn by the Defendant, Johnstone Muchomba Kagayu on 25th March, 2021. The Defendant averred that he had a decree in his favour against the Plaintiff passed on 4th October, 2018. In pursuance of the decree, the Deputy Registrar has already signed all the necessary transfer documents with authority of the court. However, for the registration to be completed the original title deed for the suit property which was in the Plaintiff’s possession had to be surrendered. It was contended that the Plaintiff’s failure to surrender the original title deed had stalled the process necessitating the Defendant to move the court to issue an order directing the Land Registrar, Nyeri to dispense with the production of the original title deed. The Defendant also prayed for the costs of this application.
3. The Plaintiff opposed the application by way of a replying affidavit sworn on the 25th June, 2021. In the replying affidavit, the Plaintiff contended that he intended to pursue an appeal against the decree. He further stated that the Defendant’s application was not necessary since he has commenced some discussions with the Defendant with on an out of court settlement. He, therefore, averred that the Defendant’s application lacked merit and was an abuse of the process of court.
4. The court record confirms that indeed judgment was passed in the Defendant’s favour on the 4th day of October, 2018 and a decree issued thereafter decreeing that the Plaintiff was registered as a trustee of parcel of land Kirimukuyu/Kiria/251 for the Defendant and his other family members and that the trust be terminated. Consequently, an order was made in the Defendant’s favour upon the hearing of an application dated 21st March, 2019 whereby the court authorized the Deputy Registrar of the court to sign all the necessary transfer documents on behalf of the Plaintiff to give effect to the decree.
5. This court has fully considered the Defendant’s application dated25th March, 2021, the material on record and the replying affidavit of the Plaintiff. The court is satisfied that the application is merited and necessary to give effect to the decree of the court and enable the Defendant enjoy the fruits of his Judgment. The opposition by the Plaintiff holds no water. Accordingly, the Defendant’s application is hereby allowed as prayed with costs to be borne by the Plaintiff.
Orders accordingly.
RULING DATED AND SIGNED IN CHAMBERS AT NYERI AND DELIVERED VIA MICROSOFT TEAMS PLATFORM THIS 14TH DAY OF JULY 2021
In the presence of:
Mr. Makura holding brief for Mr. Gori for the Plaintiff
Ms. Gichama holding brief for Mr. Wachira for the Defendant
Court assistant – Wario
……………………
Y. M. ANGIMA
ELC JUDGE