[2022] KEELC 264 (KLR)
The court found that the applicant failed to prove that the respondent had deliberately refused to settle the decree, as there was no evidence of the respondent's ability to pay the Ksh. 8.3 million or that the suit land was valued at that amount. The applicant also had alternative modes of execution available, such...
Source-derived case information.
- Citation
- [2022] KEELC 264 (KLR)
- Parties
- Applicant: Hon. David Ole Sankori; Respondent: Meliare Mpata
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 640 of 2017
- Procedural Posture
- Review Application / Ruling on Notice of Motion for Review of Judgment
- Outcome
- application dismissed
- Judges
- JE Gicheru
- Legal Topics
- Review of Judgment, Execution of Decree, Transfer of Land, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. David Ole Sankori
Applicant
Meliare Mpata
Respondent
Procedural Posture
Review Application / Ruling on Notice of Motion for Review of Judgment
Legal Issues
- 1 Whether the applicant has met the threshold for review of the judgment under Order 45, Rule 1 of the Civil Procedure Rules.
- 2 Whether the respondent has deliberately refused to comply with the court's decree.
- 3 Whether the applicant is entitled to an order compelling transfer of the suit land in lieu of monetary payment.
Ratio Decidendi
The court found that the applicant failed to prove that the respondent had deliberately refused to settle the decree, as there was no evidence of the respondent's ability to pay the Ksh. 8.3 million or that the suit land was valued at that amount. The applicant also had alternative modes of execution available, such as attachment of the respondent's property, including the suit land. Furthermore, the threshold for review under Order 45, Rule 1 of the Civil Procedure Rules was not met, as there was no discovery of new and important matter, no error apparent on the face of the record, and no sufficient reason provided. Consequently, the application for review was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application dated 15/9/2021 is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAJIADO
ELC CASE NO. 640 OF 2017
HON. DAVID OLE SANKORI……………….PLAINTIFF/APPLICANT
-VERSUS-
MELIARE MPATA......................….....…..DEFENDANT/RESPONDENT
RULING
1. This ruling is on the Notice of Motion dated 15/9/2021. The said motion which is by the Plaintiff/Applicant is brought under Sections 1A, 1B, 3Aand80of the Civil Procedure Act, Order 45, Rule 1 Civil Procedure Rulesand all enabling provisions of law. It seeks one main prayer namely;
a. That the Court be pleased to review the Judgment delivered on 23/1/2018 and substitute the same with an order that the Defendant do transfer the suit land to the Plaintiff.
Other minor prayers are for any other order the Court deems fit and provision for costs.
2. The grounds for seeking the above orders are that the defendant has deliberately refused to comply with the order despite several requests being made to him, the decree might end up being a paper one, the Plaintiffs rights to the suit are not protected as the land is registered in the name of the Defendant who could transfer it to third parties and Court Orders are not made in vain and ought to be complied with.
3. The application is supported by an affidavit sworn by the Applicant in which he reiterates the above grounds. Annexed to the affidavit is the Judgment dated 23/1/2018 and three (3) letters dated 19/2/2019, 28/3/2019 and 18/6/2020 addressed to the Defendant’s Counsel and written by the Plaintiff’s Counsel requesting for the settlement of the decree.
4. The application by the Applicant is opposed by the Respondent who has sworn a replying affidavit dated 24/1/2022 in which he denies deliberately refusing to satisfy the decree.
He says that he tried to sell a portion of the suit land but he has not succeeded. The intention was to raise money and pay the Plaintiff.
Counsel for the Defendant filed written submissions on 17/2/2022. No submissions were filed by the Plaintiff’s Counsel.
5. I have carefully considered application in its entirety including the affidavits, the record, the grounds and the provisions under which it is brought.
I find that the application has no merit and is dismissed for the following reasons.
Firstly, the applicant has not proved that the Respondent has deliberately refused to settle the decree. To do so, he would have to demonstrate that the Respondent can afford Ksh. 8. 3 Million and is refusing to pay up. He has not done so.
Secondly, the Applicant has many modes of execution of the decree. He can seek to attach the Defendant’s known property including the suit land.
Thirdly, there is nothing to show that the suit land is valued at Ksh. 8. 3 million. If the Application was allowed, it is not clear to Court if the order would be just. I do not think that the 100 acres which comprise the suit land are worth so little.
Finally, the threshold in Order 45, Rule 1of theCivil Procedure Rules of discovery of a new and important matter, or evidence which was not within the knowledge of the Plaintiff, or error apparent on the face of the record or any sufficient reason has not been met.
Having no merit, the application dated 15/9/2021 is dismissed. Costs in the cause.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO 20TH DAY OF APRIL, 2022
M.N. GICHERU
JUDGE