[2022] KEELC 1962 (KLR)
The court found that the applicant failed to demonstrate compliance with his own obligations under the consent judgment, did not provide evidence of requests for compliance, and failed to show that the Land Registrar was served with the decree or had declined to act. The mutation form relied upon by the applicant...
Source-derived case information.
- Citation
- [2022] KEELC 1962 (KLR)
- Parties
- Plaintiff: Gabriel Muthee Ismael; Defendant: Alex Marete alias Silas Mugambi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 9 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Execution Application
- Outcome
- application dismissed with costs
- Legal Topics
- Execution of Decree, Land Subdivision, Title Cancellation, Consent Judgment, Land Registrar Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Muthee Ismael
Plaintiff
Alex Marete alias Silas Mugambi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Execution Application
Legal Issues
- 1 Whether the court should cancel all subdivisions of L.R Nyaki/Kithoka/137 and revert the land to its original number for execution of the decree.
- 2 Whether the Land Registrar should be directed to dispense with the production of the original title or any subdivisions for implementation of the decree.
- 3 Whether the Executive Officer should be empowered to execute conveyance documents to transfer the defendant's share as per the decree.
Ratio Decidendi
The court found that the applicant failed to demonstrate compliance with his own obligations under the consent judgment, did not provide evidence of requests for compliance, and failed to show that the Land Registrar was served with the decree or had declined to act. The mutation form relied upon by the applicant predated the consent decree, and there was no evidence that the application was served on the plaintiff. The issues raised in the application had already been addressed in the consent judgment. Consequently, the court held that there was no merit in the application and dismissed it with costs, allowing the normal execution process to proceed.
Court Disposition
application dismissed with costs
Orders
- The application dated 31.5.2021 is dismissed with costs.
- The normal execution process shall proceed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EVNRIONMENT AND LAND COURT AT MERU
ELC CASE NO. 9 OF 2007
GABRIEL MUTHEE ISMAEL.....................................PLAINTIFF
VERSUS
ALEX MARETE alias SILAS MUGAMBI...............DEFENDANT
RULING
1. The application dated 31. 5.2021 brought under Sections 1A, 1B, 3, 3A and 63 of Civil Procedure Actseeks that:-
1) The court grants an order cancelling all the subdivisions in respect to L.R Nyaki/Kithoka/137 and have the land revert to the original number for purposes of execution of the decree in the matter.
2) An order directed at the Land Registrar Meru Central to dispense with the production of the original title to the aforesaid number or any of the subdivisions thereof in implementation of the decree.
3) An order empowering the Executive Officer of this court to execute all the necessary conveyance documents to have the defendant’s established share of 0. 182 Ha. be transferred to him as per the decree.
2. The application is supported by an affidavit sworn by Alex Marete on 31. 5.2021. The grounds upon which the application is made are that the matter was concluded on 8. 5.2019 and a decree issued on 29. 8.2019 whereof the plaintiff declined to execute the decree. That the land surveyor when he went to implement the decree, still the plaintiff had declined to cooperate only to discover the plaintiff during the pendency of the suit caused a mutation proposing several subdivisions which were irregular hence the need to consolidate the land into the original number for ease of the implementation of the decree.
3. The decree issued on 21. 8.2019 was clear that the land shall be shared as per the portions of the land parcels they occupy, the boundary being Kagwa Nkuuguru stream. The defendant was to meet the surveyor’s expenses in the subdivision. The plaintiff was to facilitate the transfer but the defendant was to pay for the transfer fees.
4. There is no indication in the application herein if the applicant performed his part of the consent judgment. Again the requests for the compliance have not been attached to the supporting affidavit. The mutation form attached precedes the consent decree and there is no indication that the Land Registrar was served with the decree for the implementation and has declined to act on it.
5. Further, all the other issues being raised in the application were taken care of in the consent judgment. Unfortunately the applicant has not indicated why he has not executed the decree since its issuance.
6. Similarly, there was in existence a caution which parties appear to have lifted by consent on 13. 5.2019.
7. Lastly, there is no affidavit of service to show that this the application has been served upon the plaintiff.
8. In view of the foregoing, I find no merits in the application. The same is hereby dismissed with costs.
9. The normal execution process shall proceed.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 26TH DAY OF JANUARY, 2022
In presence of:
No appearance for parties
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE