[2023] KEELC 728 (KLR)
The court found that LR Kajiado/Kaputiei-North/812 remains registered in the name of a party to the suit, and no third party has come forward to challenge this status or claim adverse interest. The court has jurisdiction to execute its decrees and to prevent abuse of its process, including by restricting dealings...
Source-derived case information.
- Citation
- [2023] KEELC 728 (KLR)
- Parties
- Plaintiff: Stephen Lesiya Kakeya; Defendant: George Kantai Mpusia; Defendant: Moisari Mbusia Muntet; Defendant: Shina Moisasi Catherine; Defendant: Josephine Sasimua (Administrator of the Estate of Moisasi Oel Mutente - Suyianka - Deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 47 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application for Attachment and Sale of Property Pending Appeal
- Outcome
- Order granted restricting dealings with LR Kajiado/Kaputiei-North/812 pending determination of appeal.
- Judges
- MN Gicheru
- Legal Topics
- Execution of Decree, Attachment of Property, Injunctive Orders, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Lesiya Kakeya
Plaintiff
George Kantai Mpusia
Defendant
Moisari Mbusia Muntet
Defendant
Shina Moisasi Catherine
Defendant
Josephine Sasimua (Administrator of the Estate of Moisasi Oel Mutente - Suyianka - Deceased)
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application for Attachment and Sale of Property Pending Appeal
Legal Issues
- 1 Whether the court should order attachment and restrict dealings with LR Kajiado/Kaputiei-North/812 pending satisfaction of the decree.
- 2 Whether the court has jurisdiction to execute its decree over the subject property despite claims of subdivision and third-party interests.
- 3 Whether the defendants have provided sufficient security for the due performance of the decree.
Ratio Decidendi
The court found that LR Kajiado/Kaputiei-North/812 remains registered in the name of a party to the suit, and no third party has come forward to challenge this status or claim adverse interest. The court has jurisdiction to execute its decrees and to prevent abuse of its process, including by restricting dealings with the property in question. The defendants have not demonstrated the existence of any other property to secure the decree, nor have they provided sufficient security for the due performance of the decree in the event their appeal fails. The court therefore determined that it is just and necessary to restrict any dealings with the subject property until the pending appeal is...
Court Disposition
Order granted restricting dealings with LR Kajiado/Kaputiei-North/812 pending determination of appeal.
Orders
- An order is issued restricting any dealings with LR Kajiado/Kaputiei-North/812 until the appeal pending against the judgment and decree herein is heard and determined.
Full Case Text
Judgment text and source record
26 paragraphs
Kakeya v Mpusia & 3 others (Environment & Land Case 47 of 2017) [2023] KEELC 728 (KLR) (16 February 2023) (Ruling)
Neutral citation: [2023] KEELC 728 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 47 of 2017
MN Gicheru, J
February 16, 2023
Between
Stephen Lesiya Kakeya
Plaintiff
and
George Kantai Mpusia
1st Defendant
Moisari Mbusia Muntet
2nd Defendant
Shina Moisasi Catherine
3rd Defendant
Josephine Sasimua (Sued as the Administrator of the Estate of Moisasi Oel Mutente - Suyianka - Deceased)
4th Defendant
Ruling
1. This ruling is on the notice of motion dated August 30, 2022. The motion which is brought under section 1A, 1B, 3A, 63(e) and 94 of the Civil Procedure Act, orders 22, rules 9, 26, 48, 55, 56 and 68 and 40, rule 1(b) of the Civil Procedure Rules, seeks two main prayers namely-i.Attachment of LR Kajiado/Kaputiei-North/812 by prohibiting the defendants either by themselves and anybody claiming through them from transferring, charging, alienating, gifting, disposing, subdividing pending the ascertaining of the costs.ii.Sale of LR Kajiado/Kaputiei-North 812 by public auction in satisfaction of the decree herein.
2. The application is supported by an affidavit sworn by the plaintiff dated August 30,2022 which has five annexures. There are also 12 grounds. The gist of the above material is that the plaintiff is the decree holder in this suit and the defendants have been given ample time to satisfy the decree and failed to do so.The only asset that they have that can fully satisfy the decree is this parcel and there is credible information that they intend to alienate it to defeat the execution of the decree and for the plaintiff to enjoy the fruits of his judgment.One of the annexures to the plaintiff’s affidavit is a copy of certificate of official search which shows that the parcel is in the name of Moisasi Ole Mutente Suyianka who was a party to the suit.
3. The motion is opposed by the defendant and George Kantai Mpasai has sworn a replying affidavit dated September 27, 2022. In the affidavit it is deposed as follows.1. Firstly, LR 812 has been subdivided and devolved to third parties who are not parties in this suit.2. Secondly, the High Court has already distributed LR 812 and this court has no jurisdiction in the matter.Counsel for the parties were to file written submissions by January 15, 2023 but by the time I am writing this ruling in early February 2023, no such submissions have been filed.
4. I have carefully considered the notice of motion dated August 30, 2022 and I find that LR No Kajiado/Kaputiei-North/812 should not be dealt with before execution of the decree herein for the following reasons.1. Firstly, LR 812 is in the name of Moisasi Ole Mutente Suyianka who is a party in this suit through Josephine Sasimua Moisasi. This is according to a copy of certificate of official search dated July 5, 2022. There is no other person appearing as the registered owner of the land.2. Secondly, this court has power to execute its decrees under order 22 of the Civil Procedure Rules. The court has power under section 3A to present abuse of its process. Process of the court includes the execution of its orders and decrees.3. Thirdly, any third parties affected by the orders of the court adversely have various ways in which they can approach the court. No such third party has approached the court to say that they have been affected by the orders issued so far.4. Finally, the plaintiff has a decree of Kshs 38 Million against the defend ants and they have not proved that they have any other property that they can offer as a security for the due performance of the decree in case their appeal is unsuccessful. They already have an order of stay of execution in their favour. They should not therefore be allowed to deal with this land before their appeal is heard and determined.
5. For the above stated reasons, I hereby issue an order restricting any dealings with LR Kajiado/Kaputiei- North/812 until the appeal pending against the judgment and decree herein is heard and determined.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 16THDAY OF FEBRUARY, 2023. M N GICHERUJUDGE