[2013] KEHC 6464 (KLR)
The court found that a valid decree had been issued on 27th September, 1995 ordering the 3rd defendant to excise and transfer plot No. 815 to the plaintiff. The 3rd defendant's subsequent death and the absence of known legal representatives should not frustrate the enforcement of the court's decree. The court held...
Source-derived case information.
- Citation
- [2013] KEHC 6464 (KLR)
- Parties
- Plaintiff: Hudson Moffat Mbue; Defendant: The Settlement Fund Trustee; Defendant: Lilian Wanjiku Gitonga; Defendant: Naomi Wanjiru Kamande
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 5704 of 1992
- Procedural Posture
- Notice of Motion / Ruling on Execution of Decree and Transfer of Property
- Outcome
- application allowed
- Judges
- CM Kariuki
- Legal Topics
- Execution of Decree, Transfer of Land, Death of Party, Role of Deputy Registrar
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hudson Moffat Mbue
Plaintiff
The Settlement Fund Trustee
Defendant
Lilian Wanjiku Gitonga
Defendant
Naomi Wanjiru Kamande
Defendant
Procedural Posture
Notice of Motion / Ruling on Execution of Decree and Transfer of Property
Legal Issues
- 1 Whether the court should execute the decree dated 27th September, 1995 against the legal representatives of the deceased 3rd defendant.
- 2 Whether the Deputy Registrar should be authorized to execute transfer documents for plot No. 815 in favour of the applicant.
- 3 Whether the plaintiff is entitled to compliance with the court's decree in the absence of action by the deceased defendant's representatives.
Ratio Decidendi
The court found that a valid decree had been issued on 27th September, 1995 ordering the 3rd defendant to excise and transfer plot No. 815 to the plaintiff. The 3rd defendant's subsequent death and the absence of known legal representatives should not frustrate the enforcement of the court's decree. The court held that it is just and proper to authorize the Deputy Registrar to execute the necessary transfer documents on behalf of the deceased 3rd defendant to give effect to the decree. The court emphasized that compliance with its orders is mandatory and that the plaintiff is entitled to the relief sought, as there was no evidence of appeal, variation, or review of the decree. The...
Court Disposition
application allowed
Orders
- The Deputy Registrar is authorized to execute the transfer documents for plot No. 815 out of L.R. Laikipia/Nyahururu/3a in favour of the plaintiff.
- Execution of the decree dated 27th September, 1995 against the legal representatives of the 3rd defendant (if any) is permitted.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
ENVIRONMENTAL & LAND DIVISION
ELC CASE NO.5704OF 1992(O.S)
HUDSON MOFFAT MBUE.....................PLAINTIFF/APPLICANT
-VERSUS-
THE SETTLEMETN FUND TRUSTEE...............1ST DEFENDANT
LILIAN WANJIKU GITONGA.......................…..2ND DEFENDANT
NAOMI WANJIRU KAMANDE..........................3RD DEFENDANT
RULING
The application before me is the Notice of Motion dated 3rd February, 2004 by the plaintiff which seeks the following orders:
That this Honourable court do execute the decree given on 27th September, 1996 against the legal representatives of the 3rd Defendant (if any)
That the Deputy Registrar be pleased to execute the transfer documents form plot No. 815 out of L.R Laikipia/Nyahururu/39 in favour of the applicant.
That costs of this application be in the cause.
The application is premised on the following grounds.
This court gave a decree on 27th September, 1996 ordering the 3rd defendant to excuse plot NO. 815 from L.R.Laikipia/Nyahururu/3a in favour of the applicant.
The 3rd Defendant has since died before executing the necessary transfer documents.
It fair and just for the Deputy Registrar to execute the transfer documents in place of the 3rd defendant.
The application is further supporting by the grounds contained in annexed affidavit of the plaintiff sworn on 3rd February, 2004.
The application and the hearing notice of the Notice of Motion was served upon the legal representatives of the defendants but the defendants did not file any response to the application nor attend the court when the application was scheduled to be heard and the court on 10th June, 2013 allowed the plaintiff to proceed exparte. The plaintiff counsel sought to rely on the application and grounds and the affidavit sworn by the plaintiff in support of the application.
I have perused the application and the affidavit in support of the same and I have reviewed the decree given on 27th September, 1995 and issued on 5th July, 1996 and I am satisfied the court made the following orders arising from a filed consent letter by the parties.
That the 3rd Defendant do excise the plot no. 815 out of L.R laikipia/Nyahururu/3a allocated to and currently occupied by the plaintiff.
That the official boundaries of plot No. 815 aforesaid be verified by the district surveyor according to the official map and settlement fund trustees records.
The plaintiff has deposed that the 3rd defendant has since passed on and he is unaware who the personal legal representatives of the defendant are. There is no evidence that the decree of the court has been appealed from, varied or reviewed. Court orders and decrees are intended to be complied with and the plaintiff is but seeking compliance with the court order or the decree of the court. By granting the orders sought the court will be effectuating the orders of the court.
I am satisfied the plaintiff application has merit and accordingly grant the prayers sought in the Notice of Motion by the plaintiff dated 3rd February, 1996 and for clarity state it is noted that he court’s decree was given on 27th September, 1995 and not 27th September, 1996 as indicated in the plaintiffs Notice of Motion.
I make no orders as regards costs for this application.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF JULY 2013.
J. M. MUTUNGI
JUDGE
In the presence of:
………………………………………….............……… for the Plaintiff
……………………..............................…………. for the Defendants