[2019] KEELC 2314 (KLR)
The court found that the applicant was entitled to enforcement of the judgment delivered on 24th July 2018, which ordered the transfer of 1.8 acres from the 2nd defendant to the plaintiff. The court noted that the 2nd defendant had failed to cooperate in executing the necessary documents for the transfer. The...
Source-derived case information.
- Citation
- [2019] KEELC 2314 (KLR)
- Parties
- Applicant: Josiah Malika Nengane; Respondent: Mary Mareba Meya; Respondent: William Elondanga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 171 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Enforcement Application
- Outcome
- application allowed
- Legal Topics
- Land Transfer, Execution of Judgment, Compulsory Transfer, Court Orders, Appeal Pending
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josiah Malika Nengane
Applicant
Mary Mareba Meya
Respondent
William Elondanga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Enforcement Application
Legal Issues
- 1 Whether the court should compel the 2nd defendant to execute documents for subdivision and transfer of 1.8 acres to the plaintiff as per the judgment.
- 2 Whether the Deputy Registrar should be empowered to execute the documents in default.
- 3 Whether the pendency of an appeal and absence of a stay order affects enforcement of the judgment.
Ratio Decidendi
The court found that the applicant was entitled to enforcement of the judgment delivered on 24th July 2018, which ordered the transfer of 1.8 acres from the 2nd defendant to the plaintiff. The court noted that the 2nd defendant had failed to cooperate in executing the necessary documents for the transfer. The respondents' argument that an appeal had been filed was insufficient to halt enforcement, as no stay of execution had been granted. The court emphasized that court orders must be effective and not issued in vain. In the absence of a stay, the successful party is entitled to enjoy the fruits of judgment. Therefore, the court compelled the 2nd defendant to execute the documents within...
Court Disposition
application allowed
Orders
- William Elondanga, the 2nd defendant, is compelled to sign all necessary documents for the subdivision and transfer of 1.8 acres out of land parcel No. Kisa/Mwikalikha/2013 to Josiah Malika Nengane within 14 days.
- In default, the Deputy Registrar is empowered to execute all necessary documents for the subdivision and transfer of 1.8 acres out of land parcel No. Kisa/Mwikalikha/2013 to Josiah Malika Nengane.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 171 OF 2013
JOSIAH MALIKA NENGANE PLAINTIFF/APPLICANTS
VERSUS
MARY MAREBA MEYA
WILLIAM ELONDANGA.................DEFENDANTS/RESPONDENTS
RULING
The application is dated 12th April 2019 and is brought under section 1 (A), 1 (B) and 3A of the Civil Procedure Act seeking the following orders;
1. William Elondanga the 2nd defendant herein be compelled to sign all the necessary documents for the subdivision and transfer of 1. 8 acres out of land parcel No. Kisa/Mwikalikha/2013 to Josiah Malika Nengane the plaintiff within such period as this court will deem fair and just.
2. In default the Deputy Registrar of this honourable court be empowered to execute all the necessary documents for the subdivision and transfer of 1. 8 acres out of land parcel No. Kisa/Mwikalikha/2013 to Josiah Malika Nengane the plaintiff herein.
3. The costs of this application be provided for. The applicant submitted that, on 24th of July, 2018 this honourable court delivered a final judgment cancelling the title issued to the second defendant and ordering transfer of 1. 8 acres to him as more specifically shown by the annexed copy of the decree issued herein marked ‘JMN-1’. That he is unable to execute the said decree and therefore enjoy the fruits of the judgment delivered herein in his favour because the second defendant has refused to execute all the necessary documents for the transfer of the land given to him. That it will be in the interest of justice if the court in its inherent powers granted his application herein.
The respondent submitted that the application is premature and the same should not be granted. That the respondents herein were dissatisfied with the ruling of the honourable court and have since preferred an appeal. (Annexed and marked WEM 1 is a copy of Notice of Appeal). That the respondents applied and paid for proceedings on the 22/8/2018, the said proceedings are yet to be supplied. (Annexed and marked WEM 2 is a copy of receipt for payment of proceedings). That the respondents are extremely interested in the appeal and are awaiting the proceedings so that they can proceed and prepare the records of appeal. That allowing the application herein and granting the prayers sought shall render the appeal nugatory. That the applicant testified that he is in occupation of the subject suit, he thus stands to suffer no prejudice if orders sought do await hearing and determination of the appeal. That it is in the interest of justice that this honourable court declines to grant the orders sought to enable the respondents proceed with their appeal.
This court has considered the application and the submissions therein. The application is based on the supporting affidavit of Josiah Malika Nengane as well as the general grounds that, on 24th of July, 2018 this honourable court made a final judgment and issued a decree on 12th of February, 2019 in favour of the plaintiff herein whereby inter alia the title issued in the name of the second defendant as sole proprietor of land parcel No. Kisa/Mwikalikha/2013 was revoked and 1. 8 acres thereof was to be transferred to the plaintiff as sole proprietor. The second defendant has to date failed to co-operate and exercise all the necessary documents for the subdivisions and transfer of the portion given to the plaintiff as per the said judgment and decree. It will be in the interests of justice and so as to expedite this orders sought in the applicant herein are granted. The respondent submitted that the application is premature and the same should not be granted. That the respondents herein were dissatisfied with the ruling of the honourable court and have since preferred an appeal. I find that court orders cannot be issued in vain. There is no stay order of the court’s decision delivered on the 24th of July, 2018 by this court. I find the application is merited and I grant the following orders;
1. William Elondanga the 2nd defendant is hereby compelled to sign all the necessary documents for the subdivision and transfer of 1. 8 acres out of land parcel No. Kisa/Mwikalikha/2013 to Josiah Malika Nengane the plaintiff within the next 14 days from the date of this ruling.
2. In default the Deputy Registrar of this honourable court be empowered to execute all the necessary documents for the subdivision and transfer of 1. 8 acres out of land parcel No. Kisa/Mwikalikha/2013 to Josiah Malika Nengane the plaintiff herein.
3. The costs of this application to the applicant.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 23RD JULY 2019.
N.A. MATHEKA JUDGE