[2010] KEHC 2246 (KLR)
The court found that the 1st respondent had no justification for failing to execute the transfer documents as ordered, especially since there was no stay of execution in place. The court reaffirmed its earlier order awarding five acres to the 2nd respondent and held that the 1st respondent's mere filing of a notice...
Source-derived case information.
- Citation
- [2010] KEHC 2246 (KLR)
- Parties
- Applicant: Theuri Kahoya Gitune; Respondent: Margaret G. Nderitu; Respondent: Danson Mwaura Mwangi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 294 of 1993
- Procedural Posture
- Succession Cause / Ruling on Application to Compel Execution of Transfer Documents
- Outcome
- application allowed
- Judges
- SP Ouko
- Legal Topics
- Grant Rectification, Transfer of Land, Execution of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Theuri Kahoya Gitune
Applicant
Margaret G. Nderitu
Respondent
Danson Mwaura Mwangi
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Compel Execution of Transfer Documents
Legal Issues
- 1 Whether the 1st respondent should be compelled to execute transfer documents for five acres of the suit land in favour of the 2nd respondent as previously ordered by the court.
- 2 Whether the Deputy Registrar should be authorized to execute the transfer documents in default of the 1st respondent's compliance.
Ratio Decidendi
The court found that the 1st respondent had no justification for failing to execute the transfer documents as ordered, especially since there was no stay of execution in place. The court reaffirmed its earlier order awarding five acres to the 2nd respondent and held that the 1st respondent's mere filing of a notice of appeal did not relieve her of the obligation to comply. In the absence of compliance, the court exercised its power to direct the Deputy Registrar to execute the necessary documents to effectuate the transfer, ensuring that the judgment is not frustrated by the respondent's inaction.
Court Disposition
application allowed
Orders
- The 1st respondent is ordered to sign all transfer documents in favour of the applicant within ten days from the date of the ruling.
- In default, the Deputy Registrar is authorized to sign the transfer documents on behalf of the 1st respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Succession Cause 294 of 1993
IN THE MATTERSS OF THE ESTATE OF NDERITU KARIUKI KOIGI – (DECEASED)
THEURI KAHONYA GITUNE...................................................APPLICANT/RESPONDENT
VERSUS
MARGARET G. NDERITU................................................1ST RESPONDENT/APPLICANT
DANSON MWAURA MWANGI........................................2ND RESPONDENT/APPLICANT
RULING
Theuri Kahoya Gitune has sought the revocation of the grant issued to the 1st respondent on the ground that he (the applicant) was entitled to three acres instead of 2. 2 acres of L.R. NYANDARUA/SOUTH KINANGOP/7 (the suit land) having purchased the same from the deceased, Nderitu Kariuki Koigi. It was also common ground that the 2nd respondent (the applicant also herein) had purchased five (5) acres of the suit land during the lifetime of the deceased.
The court (Mugo, J.) after hearing evidence found no grounds to revoke the grant and instead ordered that the grant-
“be rectified to the effect that the 2nd respondent be and is hereby awarded 5 acres of L.R. NO.NYANDARUA/SOUTH KINANGOP/7 while the applicant gets the remainder thereof.”
By his application of 16th December, 2009, the 2nd respondent is seeking that the 1st respondent be compelled by an order of this court to execute all the transfer documents within 10 days and in default that the Deputy Registrar of this court be directed to sign the documents on his behalf.
The 1st respondent’s advocate was served with the application and the hearing notice but failed to respond or attend when the matter came up for hearing.
The court made a specific order that the applicant was entitled to five (5) acres of the suit land. Pursuant to that order, a Certificate of Confirmation of a grant was issued on 18th September, 2009. It has been averred without being controverted that the 1st respondent’s advocate has refused to execute the transfer documents.
In the absence of any evidence to the contrary, I find no justification for the 1st respondent’s failure to comply. Indeed I have seen on record a Notice of Appeal dated 24th September, 2009 expressing the 1st respondent’s intention to challenge the judgment. Without any orders to stay those orders, a notice of appeal alone is not enough.
For these reasons, the application is allowed and the respondent in this application is ordered to sign within ten days from the date of this ruling all the transfer documents in favour of the applicant failing which the Deputy Registrar is hereby ordered to sign the said transfer documents on the respondent’s behalf. The respondent shall bear the costs of this application.
Dated, Signed and Delivered at Nakuru this 7th day of May, 2010.
W. OUKO
JUDGE