[2018] KEELC 4832 (KLR)
The court determined that the application was necessary to facilitate the implementation of its judgment delivered on 13th November, 2017. The Land Registrar Meru Central would ordinarily require the surrender of the title for L.R. NYAKI/KITHOKA-MWANIKA/45 to effect the judgment, but obtaining the title was...
Source-derived case information.
- Citation
- [2018] KEELC 4832 (KLR)
- Parties
- Plaintiff: Franklin Mutuma Nkonge; Plaintiff: Joseph Nkonge M’Arithi; Defendant: Andrew Murithi M’Ndegwa; Defendant: Cecilia Kinya M’Ndegwa; Defendant: Grace Karwira M’Ndegwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 257 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Implementation Application
- Outcome
- application allowed
- Legal Topics
- Implementation of Judgment, Land Title Dispensing, Land Registrar Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Franklin Mutuma Nkonge
Plaintiff
Joseph Nkonge M’Arithi
Plaintiff
Andrew Murithi M’Ndegwa
Defendant
Cecilia Kinya M’Ndegwa
Defendant
Grace Karwira M’Ndegwa
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Implementation Application
Legal Issues
- 1 Whether the Land Registrar Meru Central should be ordered to dispense with the title for L.R. NYAKI/KITHOKA-MWANIKA/45 in implementing the court's judgment.
- 2 Whether the application is necessary to facilitate the implementation of the judgment/decree.
- 3 Whether any party will suffer prejudice if the application is allowed.
Ratio Decidendi
The court determined that the application was necessary to facilitate the implementation of its judgment delivered on 13th November, 2017. The Land Registrar Meru Central would ordinarily require the surrender of the title for L.R. NYAKI/KITHOKA-MWANIKA/45 to effect the judgment, but obtaining the title was impracticable. To avoid frustrating the execution of the judgment and as no party would suffer prejudice, the court exercised its discretion to order the Land Registrar to dispense with the requirement for the title when implementing the judgment/decree. The application was therefore allowed to ensure the judgment could be effectively enforced.
Court Disposition
application allowed
Orders
- The Land Registrar, Meru Central, is ordered to dispense with the title for L.R. NYAKI/KITHOKA-MWANIKA/45 when implementing the judgment/decree of this court.
- The Land Registrar, Meru Central, shall be served with this ruling for compliance.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 257 OF 2017
FORMERLY MERU ELC CASE NO 56 OF 2013
FRANKLIN MUTUMA NKONGE…………....1ST PLAINTIFF
JOSEPH NKONGE M’ARITHI……………..2ND PLAINTIFF
VERSUS
ANDREW MURITHI M’NDEGWA…….... 1ST DEFENDANT
CECILIA KINYA M’NDEGWA……….…..2ND DEFENDANT
GRACE KARWIRA M’NDEGWA…….…3RD DEFENDANT
RULING
1. This application is dated 12th January, 2017.
2. The application seeks the following orders:
1. That this honourable court be pleased to certify this application as urgent and dispense with service since it is basically exparte.
2. That this honourable court be pleased to grant an order for the Land Registrar Meru Central to dispense with the title for L.R. NYAKI/KITHOKA-MWANIKA/45 when implementing the judgment/decree herein.
3. That the Land Registrar Meru Central be served for compliance.
4. That costs of this application be in the cause.
3. The application has the following grounds:
a. That there is no prejudice to be suffered by any party if the application is allowed.
b. That the application is necessary for the purpose of implementation of the judgment/decree herein.
4. The application is supported by the affidavit of Andrew Muriithi M’Ndegwa, the 1st defendant which states:
“I, ANDREW MURIITHI M’NDEGWA OF P. O. BOX 160, MERU do hereby make oath and solemnly state as follows:
1. That I am the 1st defendant and duly authorized by the other dependants (sic) to swear this affidavit in support of our application herein.
2. That this honourable court delivered its judgment on 13. 11. 2017 in our favour.
3. That we are advised by our advocate on record which we believe to be true that this application is necessary so that the orders can be served on the Land Registrar Meru Central in whose jurisdiction the subject matter is situate.
4. That the Land Registrar as a matter of procedure will demand the surrender of the title which is very difficult to procure in order for him/her to implement the judgment/decree herein.
5. That we therefore humbly urge this honourable court to allow our application which is necessary.
6. That this application is very urgent for purposes of implementation of the judgment/decree herein.
7. That the facts deponed herein are true to the best of my knowledge, information and belief.
Sworn by the said Andrew Murithi M’Ndegwa at Meru this 12th day of January, 2018
5. I agree that this application is meant to facilitate the implementation of this court’s judgment delivered on 13th November, 2017. In the circumstances, this application is allowed.
6. The Land Registrar, Meru central, is ordered to dispense with the title for L.R. NYAKI/KITHOKA-MWANIKA/45 when implementing the judgment/decree of this court.
7. It is ordered that the Land Registrar be served with this ruling for the apposite compliance.
8. Costs are awarded to the defendants.
9. It is so ordered.
Delivered in open court at Chuka this 16th day of January, 2018 in the presence of:
CA: Ndegwa
Gikunda Anampiu for the defendants
P. M. NJOROGE,
JUDGE.