[2018] KEELC 3031 (KLR)
The court declined to grant the order authorizing the Deputy Registrar to sign all necessary subdivision and transfer documents because the original consent order only required the parties to sign mutation forms, not all documents of subdivision and transfer. The court cannot enforce or grant orders that go beyond...
Source-derived case information.
- Citation
- [2018] KEELC 3031 (KLR)
- Parties
- Plaintiff: Gabriel Wahome Wanderi; Defendant: Julius Mwai Mbuthia; Defendant: Christopher Murimi Wanderi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 427 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Authorize Deputy Registrar to Sign Subdivision and Transfer Documents
- Outcome
- Application struck out with costs to the respondent.
- Judges
- L Waithaka
- Legal Topics
- Consent Orders, Enforcement of Judgments, Mutation Forms, Land Subdivision, Court Powers, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Wahome Wanderi
Plaintiff
Julius Mwai Mbuthia
Defendant
Christopher Murimi Wanderi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Authorize Deputy Registrar to Sign Subdivision and Transfer Documents
Legal Issues
- 1 Whether the court can authorize the Deputy Registrar to sign all necessary subdivision and transfer documents on behalf of the 1st defendant to effectuate the court's earlier orders.
- 2 Whether the 1st defendant's refusal to sign mutation forms justifies granting the orders sought by the applicant.
Ratio Decidendi
The court declined to grant the order authorizing the Deputy Registrar to sign all necessary subdivision and transfer documents because the original consent order only required the parties to sign mutation forms, not all documents of subdivision and transfer. The court cannot enforce or grant orders that go beyond what was expressly agreed upon and adopted as its order. However, the court noted that the 1st defendant admitted to deliberately refusing to sign the mutation forms as required, and found that the respondent was unnecessarily stalling the conclusion of the matter. The applicant was advised to file the appropriate application to seek enforcement of the specific order granted by...
Court Disposition
Application struck out with costs to the respondent.
Orders
- The application dated 14th December, 2017 is struck out with costs to the respondent.
- The applicant is at liberty to file the appropriate application to enforce the consent order regarding signing of mutation forms.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NYERI
ELC CASE NO. 427 OF 2014
Formerly NYERI HCC 232 OF 2012
GABRIEL WAHOME WANDERI................................................PLAINTIFF
-VERSUS-
JULIUS MWAI MBUTHIA................................................1ST DEFENDANT
CHRISTOPHER MURIMI WANDERI............................2ND DEFENDANT
RULING
1. The application dated 14th December, 2017 seeks the following orders:-
(1) That this Honourable court be pleased to authorize the Deputy Registrar of this Honourable court to sign all the necessary documents of subdivision and transfer on behalf of the 1st defendant Julius Mwai Mbuthia to effectuate the court orders of 25th November, 2013 of this Hobourable Court.
(2) That the 1st respondent be condemned to pay the costs of this application.
2. The application is premised on the grounds that the 1st respondent has refused and or neglected to sign the necessary transfer documents in compliance with the order of the court issued on 25th November, 2013. The application is supported by the affidavit of Gabriel Wahome Wanderi, where the ground on the face of the application is reiterated.
3. The application is opposed through a replying affidavit sworn by the 1st respondent, Julius Mwai Mbuthia. He acknowledges that parties entered a consent on 3rd October, 2013. He also admits that he has not executed mutation forms but blames the applicant for failing to ensure that the District Land Registrar and District Surveyor visit the locus, set and mark boundaries between parcels No. Mweru/Mukura/1716 and 1717 and make provision for the 5 feet access road.
4. It is not in dispute that the parties herein on 3rd October, 2013 recorded the following consent which was adopted as an order of the court:
1. That the District Land Registrar and the District Surveyor, Kirinyaga District do visit, effect and mark boundary features between L.R. No. Mwerua/Mukure/1716 and L.R. No. Mwerua/ Mukure/1717.
2. That the District Land Registrar and the District Surveyor do provide an access road between L.R. Mwerua/Mukure/2016 and L.R. No. Mwerua/Mukura/1717 continually five (5) feet of the access road.
3. That the plaintiff and the 1st defendant, Julius Mwai Mbuthia do sign the mutation forms.
4. That the parties be at liberty to appoint their own private surveyor during the exercise if they so wish.
5. That the District Land Registrar do open the necessary registration documents for the two parcels of land immediately after the exercise.
6. That the exercise aforesaid be carried on within forty five days.
7. That the matter be mentioned on 25th November, 2013 to confirm compliance.
8. That each party do bear its own costs.
5. In the aforesaid consent order, the court ordered the plaintiff and 1st defendant, Julius Mwai Mbuthia, to sign “mutation forms” not “all the necessary documents of subdivision and transfer”. This court is being asked to enforce an order it did not grant. I decline to grant the order as sought and strike out the application with costs to the respondent.
6. However, this court is not blind to the fact that the respondent has admitted that he deliberately refused to sign the mutation forms as ordered by thecourt. In my view, the respondent is being unnecessarily difficult and is the one stalling conclusion of this matter. The applicant is at liberty to file the appropriate application and seek this court’s assistance in enforcing the order granted by the court.
Orders accordingly.
Dated, signed and delivered in open court at Nyeri this 30th day of May, 2018.
L N WAITHAKA
JUDGE
Coram:
Mr. Wahome Gikonyo for the plaintiff/applicant
Mr. Rurige h/b for P. M. Wachira for the defendants/ respondents
Court assistant - Esther