Muchiri v Muchiri (Miscellaneous Application E038 of 2025) [2026] KEELC 4847 (KLR) (23 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **MISC APP.NO.E038 OF 2025** **JOHN NDERITU MUCHIRI ………………………………APPLICANT** **VERSUS** **ISAAC WANGONDU MUCHIRI ……………………….RESPONDENT** **RULING** 1. The applicant's Notice of Motion dated July 28, 2025, seeks: 2. **This Court authorizes the Deputy Registrar to sign documents on behalf of the Respondent.** 3. **Dispensation of the original title deed, passport photograph, PIN certificate, and identity card.** 4. **Police security during the subdivision of Tetu/Kiriti/44.** 5. **Costs.** 6. The application is opposed. 7. Based on the materials, the parties' averments, and their submissions, the issues I frame for the determination of this suit are whether to grant the orders sought and who should bear the costs of the current litigation. 8. The applicant avers that he was the plaintiff and the respondent was the defendant in **Nyeri ELC No. 212 of 2015**. On March 28, 2023, the ELC court sitting at Nyeri read its judgment allowing his claim, terminating the trust in respect of Title Number Tetu/Kiriti/44. 9. His advocate has since obtained a decree in respect of the suit 10. In a ruling delivered by the Honorable Court on September 20, 2024, the Court declined a similar application on the ground that there was no evidence of service of the decree and of the documents for execution by the respondent. 11. On September 24, 2024, a copy of the decree was forwarded to the respondent's Advocates via the email address: hkndiranguadvocates@yahoo.com 12. On July 11, 2025, his Advocate on record, by letter dated July 10, 2025, forwarded the requisite documents for the transaction to the respondent Advocates on record for execution. 13. The Defendant has failed to sign the necessary documentation and/or has refused and/or neglected to do so despite being served through his advocate. 14. To give effect to the orders of the court, it is necessary that the Deputy Registrar be allowed to do what the respondent has failed to do, and that any documents that may be required for registration, including the original Title, which are in the custody of the Respondent be dispensed with to enable the taking into effect of the decree. 15. The decree issued on April 12, 2023, cannot be implemented unless the Honorable Court orders the Deputy Registrar to sign the relevant documents to meet the ends of justice. 16. The respondent, conversely, asserts that the Certificate of Official Search dated 20th November 2024 confirms a caution in favor of the applicant, claiming a *"licensee interest*," which remains registered against Title No. Tetu/Kiriti/44 to this day 17. That under Section 71(1) of the Land Act, and in accordance with the effect of a caution under the Land Registration Act, 2012 (LRA), no disposition, including subdivision or transfer, inconsistent with the caution may be registered without the cautioner's consent or a Court order. The caution expressly *"prevents the Land Registrar from processing any subdivision or transfer until the Applicant formally withdraws it."* It is therefore legally contradictory and an abuse of the Court process for the applicant, who lodged and maintained the caution, to seek enforcement of the decree while his own prohibitory entry blocks registration. The applicant must first withdraw the caution before any transfer or subdivision can lawfully proceed. On this basis, the application must fail. 18. Respondent further asserts that the proposed distribution fails to provide an equitable north-south split. It grants one portion superior road frontage to the existing 16m road, while diminishing the value and utility of respondent's retained portion. 19. In **Nyeri ELC No. 212 of 2015**, this Court (Olola J.) delivered a judgment for the applicant against the respondent on March 28, 2023, as follows: ***“In the premises, I am persuaded that the Plaintiff has proved his case on a balance of probabilities. Accordingly, I hereby enter Judgment for the Plaintiff and make orders as follows:*** ***(a) A declaration is hereby made that the Defendant holds L.R. Tetu/Kiriti/44 in trust for himself and the Plaintiff.*** ***(b) An order is hereby made that the said trust be terminated forthwith with the result that the Plaintiff is hereby entitled to a half-share of the said L.R No. Tetu/Kiriti/44; and*** ***(c) The costs of this suit shall be borne by the Defendant.”*** 1. A decree was extracted in this manner: ***IT IS HEREBY ORDERED: -*** ***1. THAT a declaration is hereby made that the defendant holds L.R. Tetu/Kiriti/44 in trust for himself and the plaintiff.*** ***2. THAT an order is hereby made that the said trust be terminated forthwith with the result that the plaintiff is hereby entitled to a half-share of the said L.R. N. Tetu/Kiriti/44.*** ***3. THAT the costs of this suit shall be borne by the defendant.*** 1. The current suit (sic) seeks enforcement of the above orders, and the applicant contends that the respondent has failed to comply with them. 2. The natural consequence of the sought orders is clearly outlined in the aforementioned decree. Section 34(1) of the Civil Procedure Act (Cap 21) explicitly provides that all questions concerning the execution, discharge, or satisfaction of a decree that arise between the parties shall be determined by the Court responsible for executing the decree, rather than by a separate legal proceeding. 3. In **National Land Commission v Afrison Export Import Limited & 10 others [2019] KEELC 4569 (KLR),** the Environment and Land Court (ELC), Obaga J., explicitly reiterated that Kenyan law provides no provision for filing a separate suit to enforce a decree or its satisfaction. Any such fresh suit is deemed incompetent and liable to be struck out immediately. 4. In **Jackson** **Kipkemoi Chebochok v Charles Kibet Chepkwony & 2 others [2016] KEELC 245 (KLR)**, a land dispute, the plaintiff sought to initiate a new suit incorporating a counterclaim to enforce an earlier Lower Court decree. The ELC (Munyao J) declined the prayer, clarifying that the proper procedure is to execute the decree within the original suit rather than to institute new proceedings. 5. In **Wairimu Kimani v Joseph Mburu Kimani [2016] eKLR**, the plaintiff filed a new land suit to enforce a decree initially issued under a Land Disputes Tribunal order. The Court questioned why a new file was created, emphasizing that enforcement of any subsisting decree must use only the execution mechanisms provided under the Civil Procedure Rules within the primary file, rather than initiating fresh proceedings. 6. In **James Wainaina Imunyo & 6 others v Karanja Mbugua & Co. Advocates & another [2012] KEHC 1237 (KLR)**, the Court struck out a new suit on the basis that if a party wishes to challenge, contest, or realize an execution process, the only permissible avenue is to proceed within that same suit file, citing Section 34's absolute barrier to separate actions. 7. In this matter, the applicant holds a valid decree against the respondent. I do not see a new cause of action. The decree is not being complied with; he should not have sued again. Instead, he should file an application for Execution of the Decree under Order 22 of the Civil Procedure Rules within the initial case file, seeking the orders now sought here. 8. Consequently, the motion dated July 28, 2025, is hereby dismissed with costs. **Dated, signed, and delivered virtually in Nyeri on this 23rd day of July, 2026** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Kioni for the Applicant** **Mr. Wambugu for the Respondent.** **Denis - Court Assistant**