[2006] KEHC 51 (KLR)
The court found that the applicant was entitled to the transfer of 5 acres as ordered by the Court of Appeal. The respondent had failed to comply with the order by refusing to sign the necessary documents and had not provided any justification for his refusal. In these circumstances, the court held that it was...
Source-derived case information.
- Citation
- [2006] KEHC 51 (KLR)
- Parties
- Applicant: Isaya Mogonchi Mogonchi; Respondent: Samwel Ondari Mogonchi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 271 of 1997
- Procedural Posture
- Civil Case / Ruling on Post Judgment Application
- Outcome
- application allowed
- Judges
- K Bauni
- Legal Topics
- Land Transfer, Execution of Judgment, Court Officer Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaya Mogonchi Mogonchi
Applicant
Samwel Ondari Mogonchi
Respondent
Procedural Posture
Civil Case / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the court should authorize the Executive Officer to sign documents to effect transfer of 5 acres to the applicant as ordered by the Court of Appeal.
- 2 Whether the respondent's failure to execute transfer documents justifies court intervention.
Ratio Decidendi
The court found that the applicant was entitled to the transfer of 5 acres as ordered by the Court of Appeal. The respondent had failed to comply with the order by refusing to sign the necessary documents and had not provided any justification for his refusal. In these circumstances, the court held that it was appropriate to allow the application and direct the Executive Officer to execute all necessary documents to facilitate the transfer of the specified portion of land to the applicant.
Court Disposition
application allowed
Orders
- The Executive Officer of the court shall execute all necessary documents to facilitate the transfer of 5 acres from land parcel MAJOGE/BOSOTI/1143 to the applicant.
- Costs in the cause.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Civil Case 271 of 1997
ISAYA MOGONCHI MOGONCHI ………………………….. PLAINTIFF
VERSUS
SAMWEL ONDARI MOGONCHI ………………..……… DEFENDANT
RULING:
The applicant seeks for orders nominating the Executive Officer of the court to sign all necessary documents and forms to enable sub-division, transfer and registration of a portion of 5 acres of land from land No. MAJOGE/BOSOTI/1143 in his name. The parties had a suit which went all the way to court of appeal. The court of appeal ordered the defendant get a portion of 5 acres from the said land. He deponed that the respondent has declined to execute the necessary forms.
Application was not opposed. No grounds of opposition or replying affidavit was filed. Application therefore proceeded exparte.
I have carefully considered the application. I find it has merit. There is no dispute that the court of appeal ordered that the applicant get five acres. Respondent should have facilitated the transfer of the said portion by signing the necessary documents.
He has not done so and court is told he is reluctant to do so.
He has not given any reason why he should not sign those documents.
In the circumstances I allow the application and order that the Executive Officer of the court do execute all the necessary documents to facilitate the ultimate transfer of the said portion to the applicant. Costs in the cause.
Dated 28th February 2006.
KABURU BAUNI
JUDGE