https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5039

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC NO. 27 OF 1999** **GILIDI CHERUIYOT KIPKOECH-------------------------------PLAINTIFF** **VERSUS** **NATHAN KIPCHUMBA LAGAT------------------------1STDEFENDANT** **MARY NAIBEI CHANGWONY-----------------------2ND DEFENDANT** **DAVID OSORO--------------------------------------------3RD DEFENDANT** **RULING** 1. The 2nd defendant, Mary Naibei Changwony moved this court by way of a Notice of Motion application dated **3/6/2026** seeking the following orders in the main: 2. **…spent.** 3. **THAT the Honourable Court be pleased to review the order issued on 6/7/2023 to read:** **THAT the Deputy Registrar to execute the documents in respect of the transfer of 5 acres of LR No. Kaplamai/Sirende Block 4/Koitogos/28 instead of 6 acres as indicated in the order.** 1. **THAT in default of the plaintiff, the Deputy Registrar to be authorised to execute the transfer documents to effect the transfer of the 5 acres in respect of LR No. Kaplamai/Sirende Block 4/Koitogos/28.** **(4) Costs of the application be borne by the plaintiff.** 1. The application is based on the grounds laid out on the face of it and further supported by the sworn affidavit of Aduke Lydia Koii, Advocate, setting out the facts giving rise to the same. 2. The applicant stated in the said application that the plaintiff instituted the present suit seeking a declaration of ownership over **LR No. Kaplamai/Sirende Block 4/Koitogos/28** and an eviction order against the defendants. That the matter was heard and judgment rendered on **16/9/2015**, in which judgment the court allowed the plaintiff’s suit and issued an eviction order against the defendant (applicant) on the basis of lack of evidence to show that there had been a transfer of the suit property to the applicant/2nd defendant. 3. The applicant further stated that the applicant/2nd defendant filed an application for review and setting aside of the court’s judgment and all consequential orders of eviction under **Order 45 Rule 1** of the Civil Procedure Rules. That in its ruling delivered on **16/1/2018**, the court reviewed and set aside the judgment evicting the applicant/2nd defendant from the suit property and substituted therefor with an order dismissing the plaintiff’s suit on the ground that the claim was statute-barred under **Section 7** of the Limitation of Actions Act. 4. It was the applicant’s contention that she filed a subsequent application dated **19/10/2021** seeking orders to compel the plaintiff to execute transfer documents in respect of **5 acres,** which application was allowed vide a court’s order issued on **6/7/2023**. The court order further provided that if the plaintiff failed to execute the transfer documents, the Deputy Registrar of the Court would execute the same. 5. The order issued on **6/7/2023** according to the applicant turned out to be erroneous as it referred to **six (6) acres** instead of the correct acreage of **five (5) acres** which was an error apparent on the face of the record which necessitated an application for correction of the said error dated **7/8/2023**. When the parties appeared in court on **13/5/2024**, they informed the court that the plaintiff had executed the transfer documents and the application dated **7/8/2023** was marked as settled, by consent of the parties. 6. The applicant, however, stated that despite several efforts to have the plaintiff execute the transfer documents, he has failed to do so, thus necessitating this application. 7. The plaintiff did not file any replying affidavit to the application. He, however, appeared in court for mention on **2/7/2026**. He informed the court that he had seen the supporting affidavit and that he was not opposed to the application to have the order of court to reflect **five (5) acres** instead of **six (6) acres**. However, when the plaintiff/respondent appeared in court again on **24/7/2026**, he expressed concern that he would want a surveyor of his choice to be included in identifying the **5 acres** for the intended transfer. 8. In a rejoinder, counsel for the applicant told the court that the plaintiff was not candid with the court about the selection of a surveyor; that he has not been cooperative. 9. I have carefully considered the application together with the supporting affidavit on record. I have equally considered the oral representations by the plaintiff who conceded to the application, save for the concern about a surveyor. 10. I have also taken the liberty to peruse the court record, including the judgment of the court dated **16/9/2015** and the ruling that corrected the error apparent on the face of the record dated **16/1/2026**. Given the time this matter has been in court since **1999** and further, given the plaintiff’s demonstrable reluctance to execute transfer documents that would effectively ensure that the applicant enjoyed the fruits of her judgment, I feel that the application is merited as it is the only way of executing the court orders. I, therefore, allow the application in terms of **prayers (2)** and **(3).** 11. I make no orders as to costs, seeing that the plaintiff did not even oppose the application 12. Orders accordingly. **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **31st** day of **July 2026.** **In the presence of:** Court Assistant - Matui/Nancy Ms. Omollo holding brief for Ms. Aduke for the 2nd defendant Mr. Serebe for the plaintiff **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**