[2013] KEHC 2597 (KLR)
The court found that the Respondents, having failed to defend the suit or comply with the decree, deliberately subdivided the land to defeat the Applicants' interests and the court's judgment. The court emphasized that orders are not given in vain and must be enforced to uphold justice. Since the application was...
Source-derived case information.
- Citation
- [2013] KEHC 2597 (KLR)
- Parties
- Plaintiff: James Mayeku Makitoni & 3 Others; Defendant: Teresina N. Musebe & 4 Others
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 109 of 2000
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Restoration and Cancellation of Land Titles
- Outcome
- Application allowed as prayed with costs to the Applicants.
- Judges
- EO Obaga
- Legal Topics
- Land Title Restoration, Cancellation of Subdivided Titles, Trusts in Land, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mayeku Makitoni & 3 Others
Plaintiff
Teresina N. Musebe & 4 Others
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Restoration and Cancellation of Land Titles
Legal Issues
- 1 Whether the subdivision and transfer of land titles by the Respondents was intended to defeat the Applicants' decree and interests.
- 2 Whether the Applicants are entitled to restoration of the original land title and cancellation of the new titles created by subdivision.
- 3 Whether the court should grant injunctive relief restraining further subdivision of the disputed land.
Ratio Decidendi
The court found that the Respondents, having failed to defend the suit or comply with the decree, deliberately subdivided the land to defeat the Applicants' interests and the court's judgment. The court emphasized that orders are not given in vain and must be enforced to uphold justice. Since the application was unopposed and the Respondents showed no interest in defending the matter, the court granted the orders sought to restore the original title, cancel the subdivided titles, and restrain further subdivision, ensuring the decree's purpose is not frustrated.
Court Disposition
Application allowed as prayed with costs to the Applicants.
Orders
- The District Land Registrar Bungoma is directed to restore title No. East Bukusu/Nalondo/1658.
- Title Nos. East Bukusu/Nalondo/2550 and 2549 are cancelled.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL SUIT NO. 109 OF 2000
JAMES MAYEKU MAKITONI
& 3 OTHERS .........................................................................…...PLAINTIFFS
VERSUS
TERESINA N. MUSEBE
& 4 OTHERS ............................................................................. DEFENDANTS
R U L I N G
The Applicants brought a Notice of Motion dated 29/11/2010 seeking an order directing that the District Land Registrar Bungoma do restore title No. East Bukusu/Nalondo 1658. They also sought an order canceling title Nos. East Bukusu/Nalondo/2550 and 2549. They further sought an order restraining further subdivision of Title Nos East/Bukusu/Nalondo/2550 and 2549.
The application is supported by the Affidavit of James Mayeku Makitoni one of the Applicants. The Applicants contend that they have a decree in their favour resulting from a judgment given on 21st December, 2001. In that suit, the Applicants had brought a suit against the Respondents claiming that the Respondents were holding in trust for them eleven (11) acres out of East Bukusu/Nalondo/1658. The Court found in their favour and decreed that the Respondents were to transfer 11 acres to the Applicants.
The Respondents never bothered to defend the suit. They went ahead and subdivided the land initially known as East Bukusu/Nalondo/1658 which resulted into East Bukusu/Nalondo/2549 and 2550. The Applicants contend that the subdivision of the land was meant to defeat the Applicant's interests.
The Respondents who were aware of the hearing date of the application herein neither filed grounds of opposition or Replying Affidavit nor did their Advocate attend Court during the hearing. The hearing of this application had been postponed on a number of occasions awaiting participation of the Respondent's participation in vain. The ex-parte judgment which had resulted in the decree herein had been set aside on certain conditions which were not met prompting its restoration on application of the Applicant's counsel. It is clear that the Respondents herein have no interest in defending this matter. The subdivision was made to defeat the expected decree. Court orders are never given in vain and where it is shown that one party is out to defeat the course of justice, the Court will not hesitate to grant orders which will ensure that, the purpose for which the decree was issued is not defeated. I find that this application which in any case is not opposed is well founded. I allow the same as prayed with costs to the Applicants.
It is so ordered.
Dated, signed and delivered in Open Court on this 14th day of August, 2013.
E. OBAGA
JUDGE
In the absence of parties who had been informed of the date of delivery of ruling.
Court Clerk: Lobolia.
E. OBAGA
JUDGE
14/08/2013