[2020] KEELC 1543 (KLR)
The court found that the Defendant's refusal to cooperate in the subdivision and transfer of the suit property as previously ordered justified the intervention of the court to ensure the judgment is executed. The court held that the Deputy Registrar is empowered to execute the necessary documents to effect the...
Source-derived case information.
- Citation
- [2020] KEELC 1543 (KLR)
- Parties
- Plaintiff: James Gitingu Wamagata; Plaintiff: Josphat Maina Macharia; Defendant: David Migichi Kageni
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 459 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Application for Execution
- Outcome
- Application allowed in part; Deputy Registrar to execute subdivision and transfer documents; eviction prayer declined; costs in the cause.
- Legal Topics
- Subdivision of Land, Execution of Judgment, Transfer of Land, Court Orders, Eviction Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Gitingu Wamagata
Plaintiff
Josphat Maina Macharia
Plaintiff
David Migichi Kageni
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Application for Execution
Legal Issues
- 1 Whether the Deputy Registrar should be authorized to execute documents necessary for subdivision and transfer of the suit property to the 1st Plaintiff.
- 2 Whether the Defendant's non-cooperation justifies court intervention in execution of the decree.
- 3 Whether the prayer for eviction should be granted without following statutory procedure.
Ratio Decidendi
The court found that the Defendant's refusal to cooperate in the subdivision and transfer of the suit property as previously ordered justified the intervention of the court to ensure the judgment is executed. The court held that the Deputy Registrar is empowered to execute the necessary documents to effect the subdivision and transfer of the portion measuring 0.05 hectares to the 1st Plaintiff, as per the decree. However, the court declined to grant the prayer for eviction, emphasizing that eviction must follow the procedure set out in law. The application was therefore allowed in terms of the prayers for execution by the Deputy Registrar, but not for eviction. Costs were ordered to be in...
Court Disposition
Application allowed in part; Deputy Registrar to execute subdivision and transfer documents; eviction prayer declined; costs in the cause.
Orders
- The Deputy Registrar is authorized to execute all documents necessary for the subdivision of Dagoretti/Kinoo/4176 and transfer of 0.05 hectares to the 1st Plaintiff.
- The prayer for eviction is declined; the Plaintiff must follow the statutory procedure for eviction.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CASE NO. 459 OF 2010
JAMES GITINGU WAMAGATA......................1ST PLAINTIFF
JOSPHAT MAINA MACHARIA.....................2ND PLAINTIFF
VERSUS
DAVID MIGICHI KAGENI.................................DEFENDANT
RULING
This court entered judgement in favour of the 1st Plaintiff on 15/10/2018 vide which it directed the Defendant to undertake a subdivision of the land known as Dagoretti/Kinoo/4176 (“the Suit Property”) into two portions out of which the portion measuring 0. 05 hectares (ha) was to be transferred to the 1st Plaintiff and Defendant was to retain the portion measuring 0. 5 ha.
The Plaintiff filed the application dated 2/5/2019 on 3/7/2019 seeking to have the Deputy Registrar of the court execute the documents necessary for the subdivision of Dagorretti/Kinoo/4176 and subsequently transfer the 1st Plaintiff’s portion in execution of the decree issued on 16/11/2018. The application was made on the grounds that the Defendant had refused to cooperate with the 1st Plaintiff in the subdivision process as directed by the court; and that the 1st Plaintiff cannot carry out the subdivision because the land is registered in the 1st Defendant’s name. The application was supported by the 1st Plaintiff’s affidavit deponing to the difficulties he encountered in his quest to enforce the court’s decree.
The court has considered the application and finds that it has merit. It is allowed in terms of prayer number 1 and 2. The prayer for eviction is declined. The Plaintiff is directed to follow the procedure for eviction under the law. Costs shall be in the cause.
Delivered virtually at Nairobi this 28th day of May 2020
K.BOR
JUDGE
In the presence of:-
Mr. Muchangi Nduati for the Plaintiffs
Mr. V. Owuor- Court Assistant
No appearance for the Defendant