[2014] KEHC 992 (KLR)
The court found that the Respondents, having been served, failed to attend or contest the application. The Applicant demonstrated that the Respondents were unwilling to comply with the decree issued in 2000, specifically by failing to provide documents necessary for the transfer of the property...
Source-derived case information.
- Citation
- [2014] KEHC 992 (KLR)
- Parties
- Applicant: Joseph Gatheru Kunyiha; Respondent: Johnson Kibaara Gachegua; Respondent: Charity Gathoni Kibaara; Respondent: Michael Gachaguas Kibaara
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 413 of 1993
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Enforcement of Decree
- Outcome
- Application allowed.
- Judges
- A Mshila
- Legal Topics
- Enforcement of Decree, Execution of Judgment, Transfer of Land, Court Orders, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Gatheru Kunyiha
Applicant
Johnson Kibaara Gachegua
Respondent
Charity Gathoni Kibaara
Respondent
Michael Gachaguas Kibaara
Respondent
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Enforcement of Decree
Legal Issues
- 1 Whether the Respondents should be compelled to execute and supply documents necessary to implement the decree dated 23rd March, 2000.
- 2 Whether the Deputy Registrar should be authorised to execute the documents in default of the Respondents' compliance.
- 3 Whether costs should be awarded for this application.
Ratio Decidendi
The court found that the Respondents, having been served, failed to attend or contest the application. The Applicant demonstrated that the Respondents were unwilling to comply with the decree issued in 2000, specifically by failing to provide documents necessary for the transfer of the property NYANDARUA/MELANGINE/828. The court held that it is empowered under the Civil Procedure Act and Rules to compel compliance with its decrees and, in default, to authorise the Deputy Registrar to execute the required documents. The absence of opposition and the clear need to implement the decree justified granting the orders sought. The court declined to award costs, directing each party to bear their...
Court Disposition
Application allowed.
Orders
- The Respondents shall execute and provide the Applicant with all the requisite documents within fourteen (14) days from the date hereof.
- In default, the Deputy Registrar is hereby authorised to execute all the documents related to the subject property NYANDARUA/MELANGINE/828.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO.413 OF 1993
JOSEPH GATHERU KUNYIHA...........................................PLAINTIFF/APPLICANT
VERSUS
JOHNSON KIBAARA GACHEGUA
CHARITY GATHONI KIBAARA
MICHAEL GACHAGUAS KIBAARA.........................DEFENDANTS/RESPONDENTS
RULING
The Notice of Motion is brought under the provisions of Section 1(1), 3and 3A of the Civil Procedure Act (2010) and Order 22 Rule 28(5) of the Civil Procedure Rules 2010.
The Applicant seeks the following orders:
i) That the Defendants/Respondents be ordered to facilitate the implementation of the Decree dated 23rd March, 2000 by executing and supplying the Plaintiff/Applicant with such documents as are necessary to give effect to the Decree.
ii) That in default, the Deputy Registrar of this Honourable Court be authorised to execute such documents.
iii) The costs of this Application
The Application is premised on the grounds on the face of the Application and is supported by the affidavit made by Joseph Gatheru Kunyiha, the Applicant herein.
The Respondents though served were not in attendance at the hearing hereof, nor had they put in any response, therefore the application is uncontested.
The Decree was issued in the year 2000 and in order to implement the decree, the Applicant seeks from the Respondents the documents listed hereunder:
i) Original Title to NYANDARUA/MELANGINE/828
ii) Duly executed Land Control Board Forms.
iii) Mutation Forms
iv) Duly executed Transfer Instrument
v) Passport size photographs
vi) Copies of Identity Cards.
vii) PIN Certificates
It would appear from the submissions that the Respondents are unwilling to comply with the terms of the Decree which is to provide the Applicant with the above mentioned documents.
The Applicant seeks this court's intervention and that the Deputy Registrar be authorised to execute the relevant documents, should the Respondents fail to do so.
This court reiterates that the Application is uncontested and therefore there are no reasons advanced to challenge the application.
For those reasons, this court will allow the application and make the following orders:
i) The Respondents shall execute and provide the Applicant with all the requisite documents within fourteen (14) days from the date hereof.
ii) In default the Deputy Registrar is hereby authorised to execute all the documents related to the subject property NYANDARUA/MELANGINE/828.
iii) To bring closure to this matter, I shall not make an award for costs, each party shall bear their own costs.
It is so ordered.
Dated, Signed and Delivered at Nakuru this15th day of October, 2014.
A. MSHILA
JUDGE