[2018] KEELC 379 (KLR)
The court found that the orders sought by the Plaintiffs in the current application had already been granted in the earlier ruling of 23rd November, 2017, which allowed the Deputy Registrar to execute the transfer documents if the Defendant failed to comply. The Plaintiffs had the option of either commencing...
Source-derived case information.
- Citation
- [2018] KEELC 379 (KLR)
- Parties
- Applicant: Joseph Kariuki Njuguna; Applicant: Julius Ndungu Mbugua; Respondent: Mwanzo Development Co. Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 98 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Application for Execution of Transfer Order
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Transfer of Land, Execution of Court Orders, Contempt of Court, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kariuki Njuguna
Applicant
Julius Ndungu Mbugua
Applicant
Mwanzo Development Co. Ltd
Respondent
Procedural Posture
Notice of Motion / Ruling on Application for Execution of Transfer Order
Legal Issues
- 1 Whether the Deputy Registrar should be directed to execute transfer forms for the suit property in place of the Defendant.
- 2 Whether the Defendant should be compelled to pay costs of the application and suit.
- 3 Whether the application is an abuse of court process.
Ratio Decidendi
The court found that the orders sought by the Plaintiffs in the current application had already been granted in the earlier ruling of 23rd November, 2017, which allowed the Deputy Registrar to execute the transfer documents if the Defendant failed to comply. The Plaintiffs had the option of either commencing contempt proceedings against the Defendant for non-compliance or moving the Deputy Registrar to sign the relevant transfer documents. The court held that filing a fresh application for the same orders was unnecessary and amounted to an abuse of the court process, warranting dismissal of the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 9th March, 2018 is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. CASE NO. 98 OF 2017
JOSEPH KARIUKI NJUGUNA.........................1ST PLAINTIFF/APPLICANT
JULIUS NDUNGU MBUGUA...........................2ND PLAINTIFF/APPLICANT
VERSUS
MWANZO DEVELOPMENT CO. LTD............DEFENDANT/RESPONDENT
RULING
1. In the Notice of Motion dated 9th March, 2018, the 1st Plaintiff is seeking for the following reliefs:
a. That the Deputy Registrar of this Honourable Court be directed to execute transfer forms in respect to property Title Number Land Reference: Mavoko Town Block 2/2623 (Plot No. 381 JKIA Phase 5) in place of the Defendant in favour of the 1st Plaintiff, Joseph Kariuki Njuguna pursuant to a Ruling delivered on 23rd November, 2017.
b. That the Defendant be compelled to pay costs of this Application and the entire suit.
c.That Honourable Court be pleased to grant any other order and relief that it may deem fit and just to grant.
2. According to the Affidavit of the 1st Plaintiff, he purchased a parcel of land known as Mavoko Town Block 2/2623 being Plot No. 381 JKIA Phase 5 (the suit property) from the Defendant; that the Defendant refused to transfer the suit land to him and that after filing the Notice of Motion dated 6th March, 2017, a Ruling was delivered in this court on 23rd November, 2017 in his favour.
3. The 1st Plaintiff finally deponed that although the Defendant was served with the order of the court directing him to transfer the land to him, he has refused to do so.
4. In response, the Respondent deponed that the transfer of a title is a process which is governed by the relevant laws; that he is willing to process the transfer of the suit land through the Land Control Board and that it is pre-mature for the Plaintiffs to file the current Application. The parties in this matter did not file any submissions.
5. The orders that the Plaintiffs are praying in the current Application were granted by the court in its Ruling of 23rd November, 2017. Indeed, in the said Ruling, the court allowed the Deputy Registrar of this court to execute the Transfer documents. If indeed the Defendant has declined to comply with the orders of 23rd November, 2017, the Plaintiffs have the option of either commencing contempt proceedings or moving the Deputy Registrar to sign the relevant Transfer documents.
6. The filing of the current Application is not only an abuse of the court process, but a waste of judicial time. The Application dated 9th March, 2018 is therefore dismissed with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 7TH DAY OF DECEMBER, 2018.
O.A. ANGOTE
JUDGE