[2020] KEHC 458 (KLR)
The court found that, despite mutual accusations of non-cooperation, the central issue was the need to implement a judgment that had not yet been executed. The court determined that it was necessary to facilitate the subdivision and transfer of the suit land by compelling the respondent to sign all relevant...
Source-derived case information.
- Citation
- [2020] KEHC 458 (KLR)
- Parties
- Appellant: Genesio Murithi Bore (legal Rep. of the Estate of M’Boore Muranga – Deceased); Appellant: Festus Mwalimu; Appellant: Mbaka Muranga; Respondent: Genesia Ciarwigi Muchiri
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 19 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Post Judgment Execution Application
- Outcome
- Application allowed in part; orders granted to facilitate execution of judgment.
- Judges
- F Gikonyo, TW Cherere
- Legal Topics
- Execution of Judgment, Land Subdivision, Transfer of Land, Court Orders Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Genesio Murithi Bore (legal Rep. of the Estate of M’Boore Muranga – Deceased)
Appellant
Festus Mwalimu
Appellant
Mbaka Muranga
Appellant
Genesia Ciarwigi Muchiri
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Judgment Execution Application
Legal Issues
- 1 Whether the respondent is obstructing the implementation of the court's judgment regarding subdivision and transfer of LR. No. KARINGANI/NDAGANI/236.
- 2 Whether the court should order the OCS Chuka Police Station to provide security during the subdivision of the suit land.
- 3 Whether the respondent should be compelled to sign relevant documents for subdivision and transfer, and if not, whether the court should authorize an officer to sign on her behalf.
Ratio Decidendi
The court found that, despite mutual accusations of non-cooperation, the central issue was the need to implement a judgment that had not yet been executed. The court determined that it was necessary to facilitate the subdivision and transfer of the suit land by compelling the respondent to sign all relevant documents within a specified period, failing which the Deputy Registrar would be authorized to sign on her behalf. The court also found it appropriate to direct the OCS Chuka Police Station to provide security during the subdivision process to prevent further obstruction or confrontation. The District Land Surveyor was ordered to conduct the survey within 30 days. Both parties were...
Court Disposition
Application allowed in part; orders granted to facilitate execution of judgment.
Orders
- The respondent shall sign all subdivision and relevant transfer documents, including application for consent from the Land Control Board, within 7 days; failing which the Deputy Registrar shall sign all relevant papers to facilitate subdivision and transfer of the suit property.
- The OCS Chuka Police Station is directed to provide security during the subdivision of the suit land.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL APPEAL NO 19 OF 2014
GENESIO MURITHI BORE (legal Rep. of the Estate of
M’BOORE MURANGA – Deceased...................1st APPELLANT/APPLICANT
FESTUS MWALIMU..........................................2ND APPELLANT/APPLICANT
MBAKA MURANGA.........................................3RD APPELLANT/APPLICANT
VERSUS
GENESIA CIARWIGI MUCHIRI...............................................RESPONDENT
RULING
1. Before me is an application dated 27/2/2020 which seeks:
i. Order directing OCS Chuka Police Station to provide security to appellant and surveyor during subdivision of LR. No. KARINGANI/NDAGANI/236
ii. Order to the Respondent to sign all relevant documents to facilitate subdivision and transfer thereof in respect of the LR. No. KARINGANI/NDAGANI/236, and in default the court to authorize EO to sign the documents.
iii. Order be served upon OCS, Chuka police station
iv. Cost of security incurred by appellant be borne by Respondent.
2. The application is premised upon grounds set out in the supporting affidavit and expounded in the submissions.
3. The major argument is that the court in a ruling delivered on 19/2/2020 reviewed its judgment delivered on 30/5/2017. However, the Respondent and her children are obstructing implementation of the judgment as reviewed. The specific acts complained are; (1) they are preventing subdivision of the suit land in execution of the judgment; and (2) the Respondent has refused to sign any transfer documents. It has therefore become necessary to seek for security from OCS and order compelling her to sign documents which failing EO to sign.
4. The Respondent in a replying affidavit denied obstructing implementation of the judgement. Instead she blames the applicants for not cooperating in the subdivision exercise. She claimed that she engaged a surveyor and paid fees but the appellant refused to cooperate. She sought the help of the chief and County commissioner on the matter. She then sought security from these government offices on the exercise. She claims to have applied for Land Control Board Consent but yet to collect the application forms due to COVID-19.
5. According to her, her son has a permanent house on the land which makes it difficult to subdivide the land into 1. 15 acres. These issues have delayed the execution of the judgment. The appellant engaged into a confrontation when the surveyor visited until the exercise aborted. She also filed submissions to amplify her stand point.
ANALYSIS AND DETERMINATION
6. Is the application merited? I see accusations and counter accusations flying from one party to the other. Of essence is that there is a judgment that is yet to be implemented. I do not wish to say I believe one party and not the other. I will do what is necessary in execution of the judgement herein. Accordingly: -
i. I direct that the Respondent shall sign all subdivision and relevant transfer documents including application for consent from the land control board within 7 days which failing the DR shall sign all relevant papers to facilitate subdivision of the suit property and transfer thereof.
ii. I also direct the OCS Chuka Police Station to provide security during the subdivision of the suit land.
iii. The District Land Surveyor shall survey the land within 30 days.
iv. Both parties shall bear the cost of security and survey.
v.
vi. As these parties cannot work in harmony, the applicant shall pay all such costs; but half thereof shall be refunded by the Respondent.
It is so ordered.
Dated and signed at NAROK this 14th day of December, 2020
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F. GIKONYO
JUDGE
Dated, signed and delivered at Meru this 16th day of December 2020
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T. W. CHERERE
JUDGE